ADARAND CONSTRUCTORS, INC., PETITIONER v. FEDERICO PENA, SECRETARY OF TRANSPORTATION No. 93-1841 SUPREME COURT OF THE UNITED STATES 515 U.S. 200; 115 S. Ct. 2097; 1995 U.S. LEXIS 4037; 132 L. Ed. 2d 158; 63 U.S.L.W. 4523; 67 Fair Empl. Prac. Cas. (BNA) 1828; 66 Empl. Prac. Dec. (CCH) P43,556; 78 Rad. Reg. 2d (P & F) 357; 95 Cal. Daily Op. Service 4381; 95 Daily Journal DAR 7503; 40 Cont. Cas. Fed. (CCH) P76,756 June 12, 1995, Decided


CORE TERMS: classification, disadvantaged, subcontractor, benign, Fourteenth Amendment, joined, disadvantage, remedial, socially, plurality, contractor, consistency, economically, invidious, Fifth Amendment, discriminatory, intermediate, subcontract, stare, decisis, tailored, prime, congruence, narrowly, highway, lingering, regulation, affirmative-action, bid, subcontracting

This case involves the validity, under Federal Constitution, of affirmative action in federal agency contracting, strict scrutiny held applicable to all racial classifications imposed by federal, state, or local governmental actor.

The case at hand involved "subcontractor compensation clauses" in federal agency contracts, where (1) such clauses generally provided that a general or prime contractor would receive additional compensation for hiring subcontractors certified as small businesses owned and controlled by "socially and economically disadvantaged individuals"; and (2) the Federal Government, under laws other than the statute at issue in Fullilove v Klutznick, used some race-based presumptions in favor of some minorities in determining which individuals were so disadvantaged.


A highway construction company, which was managed by a white person, was not certified as such a small disadvantaged business. After the company allegedly lost a subcontract on a highway construction project to a certified competitor as a result of a subcontractor compensation clause in a contract awarded by a division of the United States Department of Transportation, the company (1) filed suit in the United States District Court for the District of Colorado against various federal officials; and (2) included a claim that the government's use of race-based presumptions with respect to subcontractor compensation clauses violated the equal protection component of the Fifth Amendment's due process clause. On appeal, the United States Court of Appeals for the Tenth Circuit, in affirming, upheld the use of subcontractor compensation clauses under what the court indicated was a lenient standard, "resembling" intermediate scrutiny, for review of federal affirmative action

On certiorari, the Supreme Court vacated the Court of Appeals' judgment and remanded the case for further proceedings. There was a majority opinion only in part. In that portion of the opinion of O'Connor, J., which constituted the opinion of the court--which portion was joined by Rehnquist, Ch. J., and Kennedy and Thomas, JJ., and was joined in pertinent part by Scalia, J. (that is, except to the extent that this portion might be inconsistent with views expressed separately by him)--it was held that:

  1. Strict Scrutiny must be used for purposes of determining the validity, under the equal protection component of the Fifth Amendment's due process clause or under the Fourteenth Amendment's equal protection clause, of classifications based explicitly on race, all racial classifications, imposed by whatever federal, state, or local governmental actor.
  2. Overruled Metro Broadcasting v FCC to the extent that it was inconsistent with this strict scrutiny holding.


O'Connor, J., joined by at least Rehnquist, Ch. J., Kennedy and Thomas, JJ., expressed the view that

  1. government is not disqualified from acting in response to the persistence of both the practice and the lingering effects of racial discrimination against minority groups in the United States;
  2. when race-based action is necessary to further a compelling interest, such action is within constitutional constraints if the action satisfies the "narrow tailoring" test of this case; and

Scalia, J., concurring in part and concurring in the judgment, expressed the view that 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.

Thomas, J., concurring in part and concurring in the judgment, argued that there is a moral and constitutional equivalence 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, even though such benefit programs may have been motivated, in part, by good intentions.

Stevens, J., joined by Ginsburg, J., dissenting, expressed the view that

  1. there are significant differences between a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority;
  2. there are significant differences between a decision by Congress and similar ones by a decision by a state or a municipality;
  3. the Supreme Court's application of the doctrine of stare decisis was incorrect; and

Souter, J., joined by Ginsburg and Breyer, JJ., dissenting, expressed the view that

  1. the Supreme Court should not have entertained the question whether any standard below strict scrutiny should be used to judge the constitutionality of the statutes under which the defendant officials acted;
  2. stare decisis compelled the application of Fullilove v Klutznick, under which the statutes in question passed muster;
  3. there are circumstances in which government may, consistently with the Constitution, adopt programs aimed at remedying the effects of past invidious discrimination; and

Ginsburg, J., joined by Breyer, J., dissenting, expressed the view that

  1. Congress has the to counteract discrimination's lingering effects; and
  2. improvement of such programs ought to be left to the political branches

JUDGES: O'CONNOR, J., announced the judgment of the Court and 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 the concurrence of SCALIA, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., and by SCALIA, J., to the extent heretofore indicated; and Part III-C was joined by KENNEDY, J. SCALIA, J., post, p. 239, and THOMAS, J., post, p. 240, filed opinions concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 242. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 264. GINSBURG, J., filed a dissenting opinion, in which BREYER, J., joined, post, p. 271.

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