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Civil Rights Monitor
The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives
Volume 8 no. 2
ADARAND v. PENA
In Adarand, the Supreme Court by a 5-4 vote ruled for the first time that all federal laws that create racial classifications, whether meant to burden or benefit minorities, when challenged, must be tested by the same stringent standard i.e., stric t scrutiny, this meaning that the government must show that the program was established to meet a compelling state interest and that it is narrowly tailored to achieve that purpose. The decision establishes that federal race-conscious programs will be re viewed by the courts under the due process requirement of the Fifth Amendment, in the same manner that all local and state racial classifications have been reviewed under the Fourteenth Amendment since Croson v. City of Richmond (1989). Prior to Croson, the court tended to apply a more lenient standard to racial classifications that sought to benefit minorities. It is worth noting that in Adarand, the majority states that the opinion does not address Congress' authority under the E nforcement Clause of the 14th Amendment to establish programs to address problems of race.
In its Croson decision, the Court distinguished between that decision and its earlier decision in Fullilove v. Klutznick, 448 U.S. 448 (1980), in which the Court had upheld a congressional program requiring that 10 percent of certain federal construction grants be awarded to minority contractors, emphasizing that Congress had broader power to adopt such programs than do state and local governments. The Croson opinion states that Congress has been given "special constitutional man date" to enforce the protections of the 14th Amendment, whereas section 1 of the 14th amendment is an "explicit constraint on state power and the state must undertake any remedial efforts in accordance with that promise.... Correctly viewed sec. 5 [of the 14th amendment] is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the 14th amendment."
In Adarand, however, the majority effectively overruled Fullilove and Metro Broadcasting (a 1990 case sustaining federal set-asides in broadcasting licenses) as these decisions used a more lenient standard.
Adarand Constructors appealed a decision of the U.S. Court of Appeals for the Tenth Circuit that affirmed a district court order upholding the constitutionality of the U.S. Small Business Act, which authorizes federal agencies to establish specific goals to encourage government contractors to use disadvantaged small businesses as subcontractors. Specifically, Adarand challenged a Department of Transportation program that encouraged prime contractors to subcontract with disadvantaged business enterprises (DBEs), through financial incentives, i.e., payment of up to an additional 1.5 percent of the original contract amount for utilization of one DBE or up to two percent for using two or more DBEs. The prime contractors can accept or reject the option. Mem bers of certain minority racial and ethnic groups and women are presumed socially and economically disadvantaged unless it is established that they are not so. Small businesses that are not minority or female-owned may be included in the program if they can establish that they are socially and economically disadvantaged.
The Court outlines three principles for the examination of all racial classifications: skepticism, consistency-strict scrutiny should be applied to race conscious programs that burden minorities as well as those that benefit minorities --, and congruence- the limits on federal race conscious programs are the same as the limits on state and local government programs.
Justice O'Connor asserts in the opinion that strict scrutiny need not be fatal to such programs. She states:
Justices Scalia and Thomas wrote separate concurring opinions in which they expressed the view that government race conscious programs can never survive constitutional muster and thus are fatal in fact.
Justice Stevens in dissent points out the pervasive results of using the same standard to examine race-conscious efforts to remedy discrimination as is used to judge classification that are designed to discriminate. In this respect, he says, the Court's principle of consistency is similar to ignoring the difference between a no-trespassing sign and a welcome mat. He further states that the principle of congruence is seriously misguided and that "Congressional deliberations about a matter as importa nt as affirmative action should be accorded far greater deference than those of a State or municipality."
Justice Stevens also notes that the majority's principle of consistency may result in programs to remedy discrimination against women being easier to justify than programs to remedy discrimination against African-Americans even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. [To date, programs that exclude women have been reviewed under the so-called intermediate standard, i.e., does the exclusion serve an important governmental interest and is it substantially related to the achievement of that objective.]
Justice Ginsburg in her dissenting opinion, joined by Justice Breyer, outlines "the considerable field of agreement-the common understandings and concerns-revealed in opinions that together speak for a majority of the Court." First, a majority recognizes the history of segregation and discrimination and the persistence of inequality. Secondly, there is acknowledgment of "Congress' authority to act affirmatively, not only to end discrimination, but also to counteract discrimination's linge ring effects." Third, a majority agrees that the strict scrutiny standard is "fatal" for classifications that burden groups that have suffered from discrimination, but not fatal for classifications that seek "to hasten the day when 'w e are just one race.'" And finally, there is agreement that the decision "usefully reiterates that the purpose of strict scrutiny is precisely to distinguish legitimate from illegitimate uses of race in decisionmaking...to differentiate between permissible and impermissible governmental use of race...to distinguish between a 'No Trespassing' sign and a welcome mat."
For further discussion of the case, see CIVIL RIGHTS MONITOR, vol.7, no.6, February, 1995.