Adarand Constructors, Inc. v. Pena

Following is the case brief for Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)

Case Summary of Adarand Constructors, Inc. v. Pena:

  • Federal agency contracts provide a clause that gives financial incentives to contractors that hire minority-owned small businesses to do subcontracting work.  It was a way to remedy the inequality that has typically favored white-owned businesses.
  • Adarand Contractors did not win a bid because of the minority business incentives, and it sued in federal court.
  • The lower courts dismissed Adarand’s case, noting that a lesser scrutiny is applied to race-based policies intended to help minorities that have historically been disadvantaged.
  • The U.S. Supreme Court vacated and remanded the dismissal, noting that strict scrutiny should be applied to any race-based classification, even those intended to remedy past discrimination of minorities.

Adarand Constructors, Inc. v. Pena Case Brief

Statement of the Facts:

The large majority of federal agency contracts require a “subcontractor compensation clause.”  That clause provides financial incentives to contractors to hire subcontractors that are small businesses owned by “socially and economically disadvantaged individuals.”  Essentially, the clause is the federal government’s way to try to offset the discrimination suffered by small businesses owned by minorities in the U.S.

Adarand Constructors put in the lowest bid to be a subcontractor on a transportation project, but the prime contractor awarded the subcontract to a minority-owned business because of the incentives in the federal contract’s subcontractor compensation clause.  Adarand then sued in federal court, claiming that the race-based presumptions in the subcontractor compensation clause violate equal protection under the Due Process Clause of the Fifth Amendment.

Procedural History:

  • The District Court granted summary judgment in favor of the government.
  • The Tenth Circuit Court of Appeals affirmed, finding that the race-based contract clause is appropriate under the more lenient (not strict scrutiny) standard articulated by the Supreme Court in Fullilove v. Klutznick, and Metro Broadcasting, Inc. v. FCC.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Does a race-based policy designed to help minority small businesses based on a presumption of disadvantage violate equal protection under the Fifth Amendment’s Due Process Clause?  Yes.


The decision of the Tenth Circuit Court of Appeals is vacated and remanded.

Rule of Law or Legal Principle Applied:

All race-based government statutes or policies must be evaluated under a strict scrutiny analysis, even if they are intended to remedy racial discrimination.


All racial classifications imposed by the government – regardless of whether it is the federal, state, or local government – must be analyzed under a strict scrutiny standard, whereby the racial classification must serve a compelling governmental interest, and must be narrowly tailored to further that interest.  Accordingly, those Court precedents that disagree with strict scrutiny for all governmental racial classifications, such as Metro Broadcasting and parts of the Fullilove decision, are overruled.

All courts must approach a governmental racial classification guided by three general propositions:  (i) skepticism, (ii) consistency, and (iii) congruence.  That is so regardless of whether the racial classification is intended to help or hurt the race(s) being targeted.  The Court requires States adhere to the strict scrutiny standard for race-based laws under the Fourteenth Amendment.  Accordingly, the same should hold true for federal race-based laws.

Because the lower courts did not review this case under a strict scrutiny standard, it must be remanded so that a determination under that standard can be made.

Concurring and Dissenting Opinions:

Concurring in part, and concurring in the judgment (Scalia):

Strict scrutiny must be applied to all governmental racial classifications, and there should never be racial classifications to make up for past discrimination.  Under the Constitution, “there can be no such thing as either a creditor or debtor race.”

Concurring in part, and concurring in the judgment (Thomas):

I disagree with Justice Stevens’ and Justice Ginsburg’s dissents, which allow for a “racial paternalism exception” to equal protection.  There is a similarity between laws that discriminate in order to hurt a particular race and those that discriminate to help a particular race.

Dissenting Opinion (Stevens):

Benign governmental racial classifications in order to bring equality to races historically discriminated against is appropriate, and it is what the Court’s precedents demand.  The Court’s decision in this case is disconcerting and ignores Court precedent.

Dissenting Opinion (Souter):

The Court’s decision to overrule precedent goes beyond what Adarand initially asked for when filing his lawsuit.  The Court’s decision also seems to ignore deference to Congress’ authority to overcome historic racial discrimination.

Dissenting Opinion (Ginsburg):

There is no compelling reason why the Court intervened in the way it did in this case.  However, the majority decision still allows for precedent to evolve and respond to changing conditions.


Adarand Constructors, Inc. v. Pena is a landmark decision on affirmative action in the country.  It marks the Court’s move away from allowing the government some flexibility in using legislation with racial classifications to remedy past discrimination.  The opinions in the majority, particular Justice Scalia’s, seem to reflect an unfortunate lack of understanding of the reality of racial discrimination in this country.

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments