Case Summary
Issue
Is the presumption of disadvantage based on race alone, and consequent allocation of favored treatment, a discriminatory practice that violates the equal protection principle embodied in the Due Process Clause of the Fifth Amendment?
Plaintiff
Adarand Constructors, Inc.
Defendant
Federico Peña, as Secretary of the US Department of Transportation
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Case History
In 1989, the US Department of Transportation (DOT) issued a contract to build five miles of highway in the San Juan National Forest, located in Montezuma and Dolores Counties of south-western Colorado. Adarand Constructors, Inc., owned by Randy and Valery Pech, submitted a proposal for a subcontract to construct the guardrails—Adarand’s only business specialty.
Despite the fact that Adarand’s bid was the lowest, the prime contractor awarded the sub-contract to a firm that was federally certified as a “Disadvantaged Business Enterprise” (DBE). In choosing a DBE as a sub-contractor, the prime contractor received a $10,000 bonus from the DOT.
DBE certification—and the $10,00 bonus incentive—was part of a program adopted by Congress in 1982. Under it, 42 racial groups were presumed by federal law to be “socially disadvantaged.” Members of these racial groups who own companies were entitled to have their companies listed as DBEs if the owners were also “economically disadvantaged.”
Because race was the key test to be certified as a DBE, Randy and Valery Pech believed the federal program violated the Fifth Amendment’s Equal Protection Clause. In 1990, Adarand sued the Secretary of Transportation, as well as a host of DOT agencies responsible for implementing the congressional program. In 1992, the lawsuit was dismissed, a decision upheld by the US Court of Appeals for the Tenth Circuit in 1994.
However, the Supreme Court of the United States decided to hear the case later that year. The Court now had the opportunity to overturn and reverse prior precedents that allowed governmental racial discrimination. It also had the opportunity to affirm other decisions that called for greater restrictions on government discrimination, including the 1986 MSLF case Wygant v. Jackson Board of Education, where the Court ruled racial discrimination was abhorrent and should be examined with “strict scrutiny.”
Opinion and Legacy
In June of 1995, the Court issued its 5-4 opinion, written by Justice Sandra Day O’Connor. The Court held that all racial classifications—whether imposed by federal, state, or local authorities—must pass strict scrutiny review. The legal concept of strict scrutiny as a test essentially asks if a government’s actions “serve a compelling government interest,” and if the action is “narrowly tailored to further that interest.” If it is not compelling or narrowly tailored, then the action must be considered unlawful.
The DBE program—the action in question—certified businesses as disadvantaged purely on the basis of race. The program, then, had to satisfy strict scrutiny if it was to be considered legal.
Justice Antonin Scalia wrote in a concurring opinion,
“In my view, government can never have a ‘compelling interest’ in discrimination on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction…Under our Constitution there can be no such thing as either a creditor or debtor race. That concept is alien to the Constitution’s focus upon the individual…In the eyes of the government, we are just one race here. It is American.”
Adarand v. Peña is the landmark case for government race-based programs, and has been cited almost 11,500 times since 1995, including in over a thousand unique cases. Mountain States Legal Foundation is proud to have represented the Peches and Adarand, and to have helped establish the historic precedent that Congress, the federal bureaucracy, and every other “governmental actor” is required to comply with the equal protection guarantees of the Constitution.
