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2. All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Pp. 212-231; 235-239.
(a) In Richmond v. J. A. Croson Co., 488 U. S. 469, a majority of the Court held that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. While Croson did not consider what standard of review the Fifth Amendment requires for such action taken by the Federal Government, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: "'Any preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273-274. Second, consistency: "[T]he standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," Croson, supra, at 494. And third, congruence: "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U. S. 1, 93. Taken together, these propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. pp. 212-225.
(b) However, a year after Croson, the Court, in Metro Broadcasting, upheld two federal race-based policies against a Fifth Amendment challenge. The Court repudiated the long-held notion that "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on a State to afford equal protection of the laws, Bolling v. Sharpe, 347 U. S. 497, 500, by holding that congressionally mandated "benign" racial classifications need only satisfy intermediate scrutiny. By adopting that standard, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation that strict scrutiny of governmental racial classifications is essential because it may not always be clear that a so-called preference is in fact benign. Second, it squarely rejected one of the three propositions established by this Court's earlier cases, namely, congruence between the standards applicable to federal and state race-based action, and in doing so also undermined the other two. Pp. 225-227.
(c) The propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments protect persons, not groups. It follows from that principle that all governmental action based on race-a group classification long recognized as in most circumstances irrelevant and therefore prohibited-should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection has not been infringed. Thus, strict scrutiny is the proper standard for analysis of all racial classifications, whether imposed by a federal, state, or local actor. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled. Pp. 227-231.
(d) The decision here makes explicit that federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. Thus, to the extent that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling. Requiring strict scrutiny is the best way to ensure that courts will consistently give racial classifications a detailed examination, as to both ends and means. It is not true that strict scrutiny is strict in theory, but fatal in fact. Government is not disqualified from acting in response to the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the "narrow tailoring" test set out in this Court's previous cases. Pp. 235-237.
Strict scrutiny was not mentioned in the opinion in the Riici case that Sotamayor voted on, nor considered.
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Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), is a United States Supreme Court case which held that 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). Justice Sandra Day O'Connor wrote the majority opinion of the Court, which effectively overturned Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), in which the Court had created a two tiered system for analyzing racial classifications.
Another take on
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Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).
Facts: Adarand Constructors (P) submitted the lowest bid to general contractor Mountain Gravel on a subcontracting job for a government highway project. The general contractor awarded the job to Gonzales Construction, a small business controlled by a “socially and economically disadvantaged” person, in order to take advantage of financial incentives for hiring such companies.
P filed suit against the Department of Transportation (D), arguing that the financial incentive for hiring such companies was unconstitutional. The federal district court and Tenth Circuit found in favor of D and P appealed.
Issue: On what basis will the court determine if the provision of additional compensation for companies that award subcontracting jobs to minority owned businesses is unconstitutional, in light of the Fifth Amendment Due Process clause?
Holding and Rule: Racial classifications must be analyzed under strict scrutiny standard – such classifications are constitutional only if they are narrowly tailored measures that advance compelling governmental interests.
The applicable standard of review is not determined based on which party is discriminated, but on the basis of whether there is discrimination at all. All racial classifications under the Equal Protection Clause of the Fifth Amendment are analyzed under strict scrutiny; and a Fifth Amendment classification encompasses the same analysis as Fourteenth Amendment cases.
The court held that good intentions alone are insufficient to sustain a supposedly benign racial classification. A statute of this kind inevitably is perceived to rest on the assumption that those who benefit from such a special preference are somehow less qualified purely by virtue of race. Such practices hinder rather then help race based issues. The court held that Congress must provide a reason for implementing such a spending act.
The court held that all governmental action based on race should be subject to detailed judicial scrutiny to ensure that the personal right to equal protection has not been infringed. In order to not violate the Constitution, there must be a compelling government interest.
Dissenting (Stevens, Ginsburg): This is not a bad law – the government is trying to make right on past and current discrimination by benefiting minority-owned businesses. Such consistency, as stated in the dissent, does not help laws such as these, as all statutes, even if benign in nature, stand to fall by the wayside under strict scrutiny.
Concurring (Scalia): The government can never take a compelling interest in discriminating on the basis of race in order to make up for past discrimination.
Concurring (Thomas): These programs undermine the moral basis of equal protection.
