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Adarand Constructors v. Peña

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Title: Adarand Constructors v. Peña  
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Subject: Byron White, Equal Protection Clause, Strict scrutiny, Government procurement in the United States, Japanese American
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Adarand Constructors v. Peña

Adarand Constructors v. Peña
Supreme Court of the United States
Argued January 17, 1995
Decided June 12, 1995
Full case name Adarand Constructors, Incorporated, Petitioner v. Federico Peña, Secretary of Transportation, et al.
Citations 515 more)
115 S. Ct. 2097; 132 L. Ed. 2d 158; 1995 U.S. LEXIS 4037; 63 U.S.L.W. 4523; 67 Fair Empl. Prac. Cas. (BNA) 1828; 66 Empl. Prac. Dec. (CCH) P43,556; 78 Rad. Reg. 2d (P & F) 357; 95 Cal. Daily Op. Service 4381; 95 Daily Journal DAR 7503; 40 Cont. Cas. Fed. (CCH) P76,756
Prior history On writ of certiorari to the United States Court of Appeals for the Tenth Circuit
Subsequent history On remand, 965 F. Supp. 1556 (D. Colo. 1997); vacated, sub nom. Adarand Constructors, Inc. v. Slater, 169 F. 3d 1292 (10th Cir. 1999); rev'd, 528 U.S. 216 (2000); aff'd in part, 228 F. 3d 1147 (10th Cir. 2000); cert. granted, 532 U.S. 941 (2001); cert. dismissed, sub nom. Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001)
All racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under a standard of "strict scrutiny," the highest level of Supreme Court review (such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests).
Court membership
Case opinions
Majority O'Connor, joined by Rehnquist, Scalia, Kennedy, Thomas
Concurrence Scalia
Concurrence Thomas
Dissent Stevens, joined by Ginsburg
Dissent Souter, joined by Ginsburg, Breyer
Dissent Ginsburg, joined by Breyer
Laws applied
U.S. Const. amends. V, XIV

Adarand Constructors, Inc. v. Peña, 547 (1990), in which the Court had created a two tiered system for analyzing racial classifications. Adarand held the federal government to the same standards as the state and local governments through a process of "reverse incorporation," in which the Fifth Amendment's Due Process Clause was held to bind the federal government to the same standards as state and local governments are bound under the 14th Amendment.


At the time this case was litigated, many contracts let by agencies of the United States federal government contained financial incentives for the prime contractor to employ subcontractors that were owned or controlled by “socially and economically disadvantaged individuals.” The US Small Business Administration would certify certain businesses as disadvantaged. That usually meant that the business was owned by racial or ethnic minority groups or by women. In this particular case the contract stated that “...the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities...”

In 1989 the US Department of Transportation (DOT) awarded a highway construction contract in Colorado to Mountain Gravel and Construction Company. Mountain Gravel solicited bids for a subcontract for guardrails along the highway. The lowest bid was submitted by Adarand Constructors, with a higher bid being submitted by Gonzales Construction. However, Gonzales Construction had been certified by the Small Business Administration as a disadvantaged business, and thus Mountain Gravel awarded the subcontract to Gonzales, due to financial incentives in the Mountain Gravel’s contract for employing disadvantaged businesses. Adarand filed suit in federal court against DOT, arguing that the subcontracting incentive clause, or bonus, that caused Adarand to lose a subcontract was unconstitutional. The federal district court and circuit court ruled in favor of DOT and against Adarand, which then appealed to the US Supreme Court. The case was docketed as Adarand Constructors, Inc. v. Federico Peña, Secretary of Transportation, et al., because Federico Peña was the US Secretary of Transportation at that time. Mountain States Legal Foundation represented Adarand Constructors.

The questions before the Court was primarily: is the presumption of disadvantage based on race alone, and consequent allocation of favored treatment, a discriminatory practice that violates the equal protection clause of the 14th Amendment as well as the Due Process clause of the 5th Amendment?

Subsequent developments

On September 5, 2005, the U.S. Commission on Civil Rights issued a report finding that, ten years after the Adarand decision, federal agencies still largely fail to comply with the rule in Adarand. Specifically, the Commission found that the Departments of Defense, Transportation, United States Department of Education, Energy, Housing and Urban Development, State, and the Small Business Administration, do not seriously consider race-neutral alternatives before implementing race-conscious federal procurement programs. The Commission found that such consideration is required by the strict scrutiny standard under Adarand and Court decisions. Commissioner Michael Yaki dissented from the Commission's report, arguing that the Commission was taking a "radical step backwards" from the "race-progressive policies" of the past.

External links

  • Text of Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) is available from:  LII 
  • U.S. Commission on Civil Rights, Federal Procurement After Adarand (September 2005)
  • Adarand Constructors, Inc. v. Peña Case Brief at

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