O’CONNOR, J.: In 1989, the Central Federal Lands Highway
O’CONNOR, J.: In 1989, the Central Federal Lands Highway
O'CONNOR, J.: In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States Department of Transportation (DOT), awarded the prime contract for a highway construction project in Colorado to Mountain Gravel & Construction Company. Mountain Gravel thee solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, submitted the low bid. Gonzales Construction Com-pany also submitted a bid. The prime contract's terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small businesses controlled by “socially and economically disadvantaged individuals.” Gonzales is certified as such a business; Adarand is not. Mountain Gravel awarded the subcontract to Gonzales, despite Adarand's low bid. Federal law requires that a subcontracting clause similar to the one used here must appear in most federal
agency contracts, and it also requires the clause to state that “the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the [Small Business] Administration pursuant to section 8(a) of the Small Business Act.” Adarand claims that the presumption set forth in that statute discriminates on the basis of race in violation of the Federal Government's Fifth Amendment obligation not to deny anyone equal protection of the laws…. The contract giving rise to the dispute in this case came about as a result of the Surface Transportation and Uniform Relocation Assistance Act of 1987, a DOT appropriations measure. Section 106(c)(1) of STURAA provides that “not less than 10 percent” of the appropriated funds “shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.” STURAA adopts the Small Business Aces definition of -socially and economically disadvantaged individual.- including the applicable race-based presumptions, and adds that “women shall be presumed to be socially and economically disadvantaged individuals for pur-poses of this suknection.”… After losing the guardrail subcontract to Gonzales. Adarand filed suit against various federal officials in the United SLIM Distnct Court for the District of Colorado, claiming that the race-based presumptions involved in the use of subcontracting compensation clauses oxalate Adarand's right to equal protection. The District Court granted the Government's motion for summary judgment. The Court of Appeals for the Tenth Circuit affirmed. It understood our decision in Far :love v. Etritznick. 100 S. Ct. 2738 11980). to have adopted “a lenient standard. resembling intermediate scrutiny. in assessing' the constitutionality of federal race-based action. Applying that “lenient standard.' as further developed in Aiello Broadcasting. Inc. v. FCC. 110 S. Ct. 2997 (1990). the Court of Appeals upheld the use of subcontractor compensation clauses. We grimed certioran…. In 1978. the Court confronted the question whether race-based governmental action designed to benefit such groups should also be subject to “the most repel scrutiny.” Regents of Cow, of Califocina v. Bakke. 98 S. Ct. 2733. involved an equal protection challenge to a state-run medical schools' practice of reserving a number of spaces in its entering class for minority students. The petitioners argued that “strict scrutiny' should apply only to 'classifications that dosadvantajo 'discrete and insular minorities.' Bakke did not produce an opinion for the Court, but Justice Powell's 'mimeo announcing the Court's judgment rejected the argument. In a passage pined by Justice White, Justice Powell wrote that “the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.' He concluded that “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.”… Two years after Bakke. the Court faced another challenge to remedial race-based action, this time involving action undertaken by the Federal Government. In Fullilove t iitutznick. the Court upheld Congress' inclusion of a 10% set-aside for nunontyowned businesses in the Public Works Employment Act of 1977. As in Bakke. there was no opinion for the Court. Chief Justice Burger. in an opinion joined by Justices White and Powell, observed that -any preference based on racial or ethnic criteria must necessarily recent a most searching examination to make sure that it does not conflict with constitutional
guarantees.” That opinion, however. “did not adopt. either expressly or implicitly, the formulas of analysts articulated in such cases as !Bakker It employed instead a two-part test which asked, first. “whether the objectives of the legislation are within the power of Congress.' and second, “whether the limited use of racial and ethnic criteria, in the context presented. is a constitutionally permissible means for aclueong the congressional objectives.' It then upheld the program under that test…. In Wygant sit Jackson Board of Ed. 106 S. Ct. 1842 (1986). the Court considered a Fourteenth Amendment challenge to another form of remedial racial classification. The issue in U'rgant was whether a school board could adopt race-based preferences in determining which teachers to lay off. Justice Powell's plurality opinion observed that “the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to govern mental discrimination.” and stated the two-part inquiry as 'whether the layoff pro-vision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored.' In other words. -racial classifications of any sort must be subjected to 'strict scrutiny.' ” The plurality then concluded that the school board's interest in 'providing minority role models for its minority students, as an attempt to alleviate the effects of societal discrimination.” was not a compel-ling interest that could justify the use of a racial class:ftcatvon. It added that 'societal discrimination. without more, is too amorphous a basis for imposing a racially classified remedy.” and insisted instead that “a public employer … must ensure that, before it embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination.”… The Court's failure to produce a majority opinion in Bakke. Fultdove. and It'ygant left unresolved the proper analysis for remedial race-based governmental action. The Court resolved the issue, at least in part, in 1989. Richmond v. I. A. Croton Co.. 109 S. Ct. 706 (1989). concerned a city's determination that 30% of its contracting work should go to minority-owned businesses. A majority of the Court in Croton held that -the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification,” and that the single standard of review for racial classifications should be “strict scrutiny.” As to the classification before the Court, the plurality agreed that “a state or local subdivision … has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction,” but the Court thought that the city had not acted with “a 'strong basis in evidence for its conclusion that remedial action was necessary.' – The Court also thought it -obvious that libel program is not narrowly tailored to remedy the effects of prior discrimination.” With Crown. the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. But Croson of course had no occasion to declare what standard of review the Fifth Amendment requires for such action taken by the Federal Government…. A year later, however, the Court took a surprising turn. Metro Broadcasting. Inc. v. FCC involved a Fifth Amendment challenge to two race-based policies of the Federal Communications Commission. In Metro Broadcasting. 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. It did so by holding that “benign” federal racial classifications need only satisfy intermediate scrutiny, even though Croson had recently concluded that such classifications enacted by a State must satisfy strict scrutiny. “Benign” federal racial classifications, the Court aid. “—even if those measures are not remedial in the sense of being designed to compensate victims of past governmental or societal discrimination—are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.”… By adopting intermediate scrutiny as the standard of review for congressionally mandated “benign” racial classifications, Metro Broadcast mg 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…. Second. Metro Broadcasting squarely rejected one of the three propositions established by the Court's earlier equal protection cases, namely. 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 consistency of treatment irrespective of the race of the burdened or benefited group. under Metro Broad-casting. certain racial classifications (“benign” ones enacted by the Federal Government) should be treated less skeptically than others: and the race of the benefited group is critical to the determination of which standard of review to apply. :Memo Broadcasting was thus a significant departure from much of what had Come before it.
The three propositions undermined by Metro Broadcasting all derive from the have principle that the Fifth and Fourteenth Amendments to the protect persons, not groups. It follows from that principle that all governmental anion based on race.., should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court's understanding of equal protection, and holding “benign” state and federal racial classifications to different standards does not square with them…. Accordingly, we hold today that all racial classifications, imposed by what- ever federal, state, or local governmental actor, muss be analyzed by a reviewing court under . In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. To the extent ,fxr Maio Broadcasting is inconsistent with thy it is overruled…. Because our decision today alien the playing i_ in some important respects. we think it hot to the case to the lower courts for further consideration in light of the principles we have announced. II,: Cowl of Appeals. following .Vents Broadcasting and Fielleove. analyted the case in terns of intermediate scrutiny. It upheld the challenged statutes and regulations because it found them to be “narrowly tailored to achieve (then significant governmental purpose of providing subcontracting opportunities roe .mall disadvantaged business enterprises.” The Court in Appeals did not decide the question whether the interests served by the use of sub-contractor compensation clauses are properly described as “compelling.” It also 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, or whether the program was appropriately limited such that it “will not last longer than the effects it is designed to eliminate.”… The question whether any of the was.s in which the Government uses subcontractor compensation Clause.; can survive stria scrutiny. and any relevance distinctions such as these may have to that question. should be addressed in the first instance by the lower courts. Accordingly. the lodgment of the Court of Appeals s vacated. and the case is remanded for further proceedings consistent with this opinion.
Case Question
1. Why was Adarand Constructors, as low bidder on the guardrail subcontract, not awarded the job?
2. What were the holdings of Bakke, Fuwove, and Wygant? Why did these decisions not resolve the standard of review question?
3. What is the conflict between the opinions in Croson and Metro Broadcasting?
4. Why is the holding in this case so important? Does this opinion stand for the proposition that affirmative action programs are unconstitutional?
5. Why did the Supreme Court decide not to resolve the issue of which party should be awarded the guardrail subcontract?
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