Adarand Constructors, Inc. v. Peñ A 505 U.S. 200 (1995)

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Adarand Constructors, Inc. v. Peña, which was an affirmative action case decided in 1995 by a five-Justice majority of the Supreme Court, held that "all racial classifications, imposed by whatever federal, state or local government actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests." In so holding, the Court overruled its decision in metro broadcasting, inc. v. fcc (1990) that "benign" racial classifications are subject only to intermediate scrutiny. The Court also eliminated the distinction drawn by its opinion in richmond (city of) v. j. a. croson co. (1989) between state and local race-based affirmative action programs (which were held subject to strict scrutiny in Croson) and federal affirmative action programs.

In Adarand, a federal contractor passed over the low bid submitted by Adarand Constructors in favor of a higher-bidding minority-owned subcontractor, because federal highway regulations gave the contractor a financial bonus for selecting subcontractors owned by "socially and economically disadvantaged individuals." Members of enumerated minority groups and women were presumed by the regulations to be socially disadvantaged. The Court viewed the presumption of social disadvantage based on race and ethnicity as a facially race-based classification, subject to strict scrutiny.

Not all affirmative action is necessarily subject to strict scrutiny under Adarand. The Court held in Adarand that affirmative action is subject to the same level of scrutiny as garden-variety discrimination. The level of scrutiny in ordinary discrimination cases has varied—strict scrutiny applies to discrimination on the basis of race, intermediate scrutiny to gender classifications, and rationality review to classifications not recognized as subject to special constitutional protection (for example, sexual orientation and age). Under Adarand, the same variation in levels of scrutiny appears to apply to affirmative action.

In discussing strict scrutiny, the Court expressed the "wish to dispel the notion that strict scrutiny is 'strict in theory but fatal in fact.' " The example the Court gave of an affirmative action program that would survive strict scrutiny was a program set in place by a governmental body to remedy its own past discrimination. The Court did not indicate whether governmental affirmative action programs that are not remedial in this narrow sense (and most are not) would be permissible.

The Court remanded the Adarand case to the lower courts, allowing them the first opportunity to decide whether the highway regulations survive strict scrutiny. The trial court invalidated the affirmative action program, subjecting it to strict scrutiny. While the case was pending on appeal, Adarand Constructors itself applied for and received certification as a socially and economically disadvantaged business. Holding that Adarand no longer had standing to challenge a program from which it could now benefit, the U.S. Court of Appeals for the Tenth Circuit dismissed the case as moot and vacated the district court's opinion. Thus, whether the program at issue in Adarand is constitutional remains unsettled.

In response to Adarand, President william j. clinton stated that his policy towards federal affirmative action was "mend it, don't end it," and ordered federal agencies to reexamine their affirmative action programs in that light.

Deborah C. Malamud


Mishkin, Paul J. 1996 The Making of a Turning Point: Metro and Adarand. California Law Review 84:875–886.

U.S. Department of Justice 1996 Proposed Reforms to Affirmative Action in Federal Procurement. Federal Register 61:26042.