In the case of Adarand Constructors v. Peña, the U.S. Supreme Court ruled that all racial preferences in government-financed programs were inherently suspect and must be assessed using the standard of “strict scrutiny,” which meant that they were unconstitutional unless narrowly tailored to promote a compelling governmental interest.
The U.S. Supreme Court’s landmark decision in the 1995 case of Adarand Constructors v. Peña is one in a long series of Court decisions relating to affirmative action—that is, policies designed to increase the participation of underrepresented minorities and women in business, employment, and education. Although the Civil Rights Act of 1964
An angry group of nonminority contractors went to federal court to challenge the set-asides as a form of unconstitutional “reverse discrimination”
Randy Pech, the white owner of Adarand Constructors in Colorado Springs, Colorado, was one of many entrepreneurs who was disappointed by the Fullilove decision. Pech’s company, which specialized in building guardrails on public highways and bridges, had been founded in 1976 by Pech and Tom Adams (the name Adarand was a combination of the founders’ names). By the mid-1980’s, Adarand Constructors had grown to become the most successful guardrail company in Colorado, but Pech was infuriated to observe that because of minority-owner preferences, his company was losing 10 to 15 percent of the jobs for which it was the low bidder. Testifying at hearings, Pech emerged as a vociferous opponent of racial preferences. He even considered transferring ownership of Adarand to his wife, Val Pech, so that the company would qualify as a disadvantaged enterprise, but he eventually concluded that such a maneuver, even if commonly practiced, would be fraudulent.
Because of the conservative judicial appointments of President Ronald Reagan, the Supreme Court was gradually taking a more skeptical view of government requirements for remedial preferences. In the case of Richmond v. J. A. Croson Co. (1989),
In 1989, Adarand Constructors submitted the lowest bid to subcontract the guardrail work for a large project in the San Juan National Forest—a project sponsored by the Federal Highway Administration, which was part of the Department of Transportation (DOT). Instead of accepting the low bid, the prime contractor selected a minority-owned company, the Gonzales Construction Company. In federal court, Pech sued the DOT and its head, Federico Peña, arguing that the Croson principles should apply to the federal government under the Fifth Amendment. As the case was being argued in lower federal courts, however, the Supreme Court decided the similar case of Metro Broadcasting v. F.C.C. (1990),
When the case reached the Supreme Court, however, in Adarand Constructors v. Peña, the justices decided, in a five-to-four vote, that federally financed set-asides were in the same constitutional category as state and local mandates, thereby overturning the Metro Broadcasting ruling. The impact of this decision was to apply the demanding test of strict scrutiny to federal programs that disadvantaged nonminority applicants because of race. This meant, according to Justice O’Connor’s opinion for the Court, that all governmental race-conscious classifications must be “subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” The two most conservative justices, Antonin Scalia and Clarence Thomas, wrote concurring opinions that condemned all race preferences as unconstitutional. Scalia declared: “In the eyes of the government we are just one race here. It is American.” Thomas argued that set-asides and other preferences are patronizing and reinforce the perception that blacks are incapable of success based on the principle of equal opportunity.
The four dissenters, led by Justices John Paul Stevens and Ruth Bader Ginsburg, argued that the history of racial discrimination
The Supreme Court’s ruling in Adarand Constructors v. Peña did not automatically overturn the DOT program challenged by Pech. Instead, the ruling sent the case back to the lower courts for a decision concerning whether the program was unconstitutional according to the strict scrutiny standard, which required that the program be justified by a compelling reason and be narrowly tailored to eliminate discrimination that could be proven (not just generalized bias). At the time of the ruling, nevertheless, the courts had struck down almost all policies that had been evaluated according to the rigorous test, to the extent that most law books characterized it as “strict in theory but fatal in practice.” As expected, the lower courts soon determined that the program violated the constitutional rights of nonminority contractors such as Adarand.
Eight years later, however, in the case of Grutter v. Bollinger (2003),
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Anderson, Terry H. The Pursuit of Fairness: A History of Affirmative Action. New York: Oxford University Press, 2004. Presents an excellent and balanced historical account of affirmative action from the beginning of racial and gender preferences to the early twenty-first century. -
Bean, Jonathan J. Big Government and Affirmative Action: The Scandalous History of the Small Business Administration. Lexington: University Press of Kentucky, 2001. Critical evaluation of the Small Business Administration argues that many of its scandals have resulted from the agency’s use of gender and racial preferences, to the detriment of meritocracy. -
Eastman, Terry. Ending Affirmative Action: The Case for Colorblind Justice. New York: Basic Books, 1996. Provides a historical summary of affirmative action and presents a case for ending all preferences based on race or gender, arguing for a policy of equal opportunity. -
Kranz, Rachel. Affirmative Action. New York: Facts On File, 2002. Introductory research guide for students summarizes the political debate and includes a historical overview as well as a summary of important legal cases. -
Leiter, Samuel. Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis. Albany: State University of New York Press, 2002. Examines various affirmative action programs, including their origins, growth, impacts, and future prospects. -
Spann, Girardeau. Law of Affirmative Action: Twenty Five Years of Supreme Court Decisions on Race and Remedies. New York: New York University Press, 2000. Comprehensive work chronicles the Court’s rulings from DeFunis v. Odegaard (1974) to the end of the twentieth century. -
Wise, Tim J. Affirmative Action: Racial Preference in Black and White. New York: Routledge, 2005. Presents a one-sided defense of racial preferences as necessary remedies for historical discrimination against minorities.
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