OCTOBER TERM, 1994
Syllabus
ADARAND CONSTRUCTORS, INC.
v. PENA, SECRETARY OF
TRANSPORTATION, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No.93-1841. Argued January 17, 1995-Decided June 12, 1995
Most federal agency contracts must contain a subcontractor
compensation clause, which gives a prime contractor a financial
incentive to hire subcontractors certified as small businesses
controlled by socially and economically disadvantaged individuals,
and requires the contractor to presume that such individuals
include minorities or any other individuals found to be
disadvantaged by the Small Business Administration (SBA). The prime
contractor under a federal highway construction contract containing
such a clause awarded a subcontract to a company that was certified
as a small disadvantaged business. The record does not reveal how
the company obtained its certification, but it could have been by
anyone of three routes: under one of two SBA programs-known as the
8(a) and 8(d) programs-or by a state agency under relevant
Department of Transportation regulations. Petitioner Adarand
Constructors, Inc., which submitted the low bid on the subcontract
but was not a certified business, filed suit against respondent
federal officials, claiming that the race-based presumptions used
in subcontractor compensation clauses violate the equal protection
component of the Fifth Amendment's Due Process Clause. The District
Court granted respondents summary judgment. In affirming, the Court
of Appeals assessed the constitutionality of the federal race-based
action under a lenient standard, resembling intermediate scrutiny,
which it determined was required by
Fullilove v.
Klutznick, 448
U. S. 448, and
Metro Broadcasting, Inc. v.
FCC,
497 U. S.
547.
Held: The judgment is vacated, and the case is remanded.
16 F.3d
1537, vacated and remanded.
JUSTICE O'CONNOR delivered an opinion with respect to Parts I,
II, III-A, III-B, III-D, and IV, which was for the Court except
insofar as it might be inconsistent with the views expressed in
JUSTICE SCALIA'S concurrence, concluding that:
1. Adarand has standing to seek forward-looking relief. It has
met the requirements necessary to maintain its claim by alleging an
invasion of a legally protected interest in a particularized
manner, and by showing that it is very likely to bid, in the
relatively near future, on another Government contract offering
financial incentives to a prime contractor
201
for hiring disadvantaged subcontractors. See
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560. pp.
210-212.
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 gov-
202
ernmental 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.
3. Because this decision alters the playing field in some
important respects, the case is remanded to the lower courts for
further consideration. The Court of Appeals did not decide whether
the interests served by the use of subcontractor compensation
clauses are properly described as "compelling." Nor did it address
the question of narrow tailoring in terms of this Court's strict
scrutiny cases. Unresolved questions also remain concerning the
details of the complex regulatory regimes implicated by the use of
such clauses. Pp. 237-238.
JUSTICE SCALIA agreed that strict scrutiny must be applied to
racial classifications imposed by all governmental actors, but
concluded that government can never have a "compelling interest" in
discriminating on the basis of race in order to "make up" for past
racial discrimination in the opposite direction. Under the
Constitution there can be no such thing as either a creditor or a
debtor race. We are just one race in the eyes of government. P.
239.
O'CONNOR, J., announced the judgment of the Court and delivered
an opinion with respect to Parts I, II, III-A, III-B, III-D, and
IV, which was for the Court except insofar as it might be
inconsistent with the views expressed in the concurrence of SCALIA,
J., and an opinion with respect to Part III-C. Parts I, II, III-A,
III-B, III-D, and IV of that opinion were joined by REHNQUIST, C.
J., and KENNEDY and THOMAS, JJ., and by
203
SCALIA, J., to the extent heretofore indicated; and Part III -C
was joined by KENNEDY, J. SCALIA, J.,
post, p. 239, and
THOMAS, J.,
post, p. 240, filed opinions concurring in part
and concurring in the judgment. STEVENS, J., filed a dissenting
opinion, in which GINSBURG, J., joined,
post, p. 242.
SOUTER, J., filed a dissenting opinion, in which GINSBURG and
BREYER, JJ., joined,
post, p. 264. GINSBURG, J., filed a
dissenting opinion, in which BREYER, J., joined,
post, p.
271.
William Perry Pendley argued the cause for
petitioner.
With him on the briefs were
Todd S.
Welch and
Steven J.
Lechner.
Solicitor General Days argued the cause for
respondents.
With him on the brief were Assistant Attorney General Patrick,
Deputy Solicitor General Bender, Cornelia T. L. Pillard, David K.
Flynn, Lisa C. Wilson, Paul M. Geier, and Edward v: A. Kussy. *
*Briefs of
amici curiae urging reversal were filed for
Associated General Contractors of America, Inc., by
John G.
Roberts, Jr., David G.
Leitch, and
Michael E.
Kennedy; for the Atlantic Legal Foundation by
Martin S.
Kaufman; for the Federalist Society, Ohio State University
College of Law Chapter, by
Michael D. Rose; for L. S. Lee,
Inc., et al. by
Walter H. Ryland; for the Pacific Legal
Foundation by
Ronald A. Zumbrun, John H. Findley, and
Anthony T. Caso; and for the Washington Legal Foundation et
al. by
Daniel J.
Popeo and
Richard A.
Samp.
Briefs of
amici curiae urging affirmance were filed for
the State of Maryland et al. by J.
Joseph Curran, Jr.,
Attorney General of Maryland, and
Evelyn O.
Cannon,
Assistant Attorney General,
Grant Woods, Attorney General of
Arizona,
Richard Blumenthal, Attorney General of
Connecticut,
Robert A. Marks, Attorney General of Hawaii,
Roland W Burris, Attorney General of Illinois,
Pamela
F.
Carter, Attorney General of Indiana,
Scott
Harshbarger, Attorney General of Massachusetts,
Hubert H.
Humphrey III, Attorney General of Minnesota,
Tom Udall,
Attorney General of New Mexico, G.
Oliver Koppell, Attorney
General of New York,
Michael F.
Easley, Attorney
General of North Carolina,
Lee Fisher, Attorney General of
Ohio,
Theodore R. Kulongoski, Attorney General of Oregon,
Christine O.
Gregoire, Attorney General of
Washington,
James E. Doyle, Attorney General of Wisconsin,
Erias A. Hyman, Acting Corporation Counsel for the District
of Columbia, and
Eleni M. Constantine; for the Coalition for
Economic Equity et al. by
William C.
McNeill III and
Judith E. Kurtz; for the Congressional Asian Pacific
American Caucus et al. by
Koteles Alexander and
Brian
J.
Murphy; for the Congressional
204
JUSTICE O'CONNOR announced the judgment of the Court and
delivered an opinion with respect to Parts I, II, III-A, III-B,
III-D, and IV, which is for the Court except insofar as it might be
inconsistent with the views expressed in JUSTICE SCALIA'S
concurrence, and an opinion with respect to Part III-C in which
JUSTICE KENNEDY joins.
Petitioner Adarand Constructors, Inc., claims that the Federal
Government's practice of giving general contractors on Government
projects a financial incentive to hire subcontractors controlled by
"socially and economically disadvantaged individuals," and in
particular, the Government's use of race-based presumptions in
identifying such individuals, violates the equal protection
component of the Fifth Amendment's Due Process Clause. The Court of
Appeals rejected Adarand's claim. We conclude, however, that courts
should analyze cases of this kind under a different standard of
review than the one the Court of Appeals applied. We there-
Black Caucus by
H. Russell Frisby, Jr., and
Thomas
J.
Madden; for the Equality in Enterprise Opportunities
Association, Inc., by
Kenneth A. Martin; for the Latin
American Management Association by
Pamela J.
Mazza;
for the Lawyers' Committee for Civil Rights Under Law et al. by
John Payton, John H. Pickering, Michael A. Cooper, Herbert
J.
Hansell, Thomas J.
Henderson, Richard T. Seymour,
Sharon R. Vinick, Steven R. Shapiro, Donna R. Lenhoff, and
Marcia D. Greenberger; for the Minority Business Enterprise
Legal Defense and Education Fund, Inc., et al. by
Donald B.
Verrilli, Jr., and
Maureen F.
Del Duca; for the
Minority Media and Telecommunications Council et al. by
David
Honig and
Angela Campbell; for the National Association
for the Advancement of Colored People by
Ronald D. Maines,
Dennis Courtland Hayes, and
Willie Abrams; and for the
National Coalition of Minority Businesses by
Weldon H.
Latham.
Briefs of
amici curiae were filed for the NAACP Legal
Defense and Educational Fund, Inc., by
Elaine R. Jones, Theodore
M. Shaw, Charles Stephen Ralston, and
Eric Schnapper;
for the National Association of Minority Businesses by
Carlos M.
Sandoval and
Warren W Grossman; for the Maryland Women
Business Entrepreneurs Association et al. by
Kathleen T. Schwall
ie, Janice K. Cunningham, and
Peter A. Teholiz; and for
the National Bar Association et al. by J.
Clay Smith,
Jr.
205
fore vacate the Court of Appeals' judgment and remand the case
for further proceedings.
I
In 1989, the Central Federal Lands Highway Division (CFLHD),
which is part of the United States Department of Transportation
(DOT), awarded the prime contract for a highway construction
project in Colorado to Mountain Gravel & Construction Company.
Mountain Gravel then solicited bids from subcontractors for the
guardrail portion of the contract. Adarand, a Colorado-based
highway construction company specializing in guardrail work,
submitted the low bid. Gonzales Construction Company also submitted
a bid.
The prime contract's terms provide that Mountain Gravel would
receive additional compensation if it hired subcontractors
certified as small businesses controlled by "socially and
economically disadvantaged individuals," App. 24. Gonzales is
certified as such a business; Adarand is not. Mountain Gravel
awarded the subcontract to Gonzales, despite Adarand's low bid, and
Mountain Gravel's Chief Estimator has submitted an affidavit
stating that Mountain Gravel would have accepted Adarand's bid, had
it not been for the additional payment it received by hiring
Gonzales instead.
Id., at 28-31. Federal law requires that a
subcontracting clause similar to the one used here must appear in
most federal agency contracts, and it also requires the clause to
state that "[t]he contractor shall presume that socially and
economically disadvantaged individuals include Black Americans,
Hispanic Americans, Native Americans, Asian Pacific Americans, and
other minorities, or any other individual found to be disadvantaged
by the [Small Business] Administration pursuant to section 8(a) of
the Small Business Act." 15 U. S. C. §§ 637(d)(2), (3). Adarand
claims that the presumption set forth in that statute discriminates
on the basis of
206
race in violation of the Federal Government's Fifth Amendment
obligation not to deny anyone equal protection of the laws.
These fairly straightforward facts implicate a complex scheme of
federal statutes and regulations, to which we now turn. The Small
Business Act (Act), 72 Stat. 384, as amended, 15 U. S. C. § 631
et seq., declares it to be "the policy of the United States
that small business concerns, [and] small business concerns owned
and controlled by socially and economically disadvantaged
individuals, ... shall have the maximum practicable opportunity to
participate in the performance of contracts let by any Federal
agency." § 8(d)(1), 15 U. S. C. § 637(d)(1). The Act defines
"socially disadvantaged individuals" as "those who have been
subjected to racial or ethnic prejudice or cultural bias because of
their identity as a member of a group without regard to their
individual qualities," § 8(a)(5), 15 U. S. C. § 637(a)(5), and it
defines "economically disadvantaged individuals" as "those socially
disadvantaged individuals whose ability to compete in the free
enterprise system has been impaired due to diminished capital and
credit opportunities as compared to others in the same business
area who are not socially disadvantaged." § 8(a)(6)(A), 15 U. S. C.
§ 637(a)(6)(A).
In furtherance of the policy stated in § 8(d)(1), the Act
establishes "[t]he Government-wide goal for participation by small
business concerns owned and controlled by socially and economically
disadvantaged individuals" at "not less than 5 percent of the total
value of all prime contract and subcontract awards for each fiscal
year." 15 U. S. C. § 644(g)(1). I t also requires the head of each
federal agency to set agency-specific goals for participation by
businesses controlled by socially and economically disadvantaged
individuals.
Ibid.
The Small Business Administration (SBA) has implemented these
statutory directives in a variety of ways, two of which are
relevant here. One is the "8(a) program,"
207
which is available to small businesses controlled by socially
and economically disadvantaged individuals as the SBA has defined
those terms. The 8(a) program confers a wide range of benefits on
participating businesses, see,
e. g., 13 CFR §§
124.303-124.311, 124.403 (1994); 48 CFR subpt. 19.8 (1994), one of
which is automatic eligibility for subcontractor compensation
provisions of the kind at issue in this case, 15 U. S. C. §
637(d)(3)(C) (conferring presumptive eligibility on anyone "found
to be disadvantaged ... pursuant to section 8(a) of the Small
Business Act"). To participate in the 8(a) program, a business must
be "small," as defined in 13 CFR § 124.102 (1994); and it must be
51% owned by individuals who qualify as "socially and economically
disadvantaged," § 124.103. The SBA presumes that black, Hispanic,
Asian Pacific, Subcontinent Asian, and Native Americans, as well as
"members of other groups designated from time to time by SBA," are
"socially disadvantaged," § 124.105(b)(1). It also allows any
individual not a member of a listed group to prove social
disadvantage "on the basis of clear and convincing evidence," as
described in § 124.105(c). Social disadvantage is not enough to
establish eligibility, however; SBA also requires each 8(a) program
participant to prove "economic disadvantage" according to the
criteria set forth in § 124.106(a).
The other SBA program relevant to this case is the "8(d)
subcontracting program," which unlike the 8(a) program is limited
to eligibility for subcontracting provisions like the one at issue
here. In determining eligibility, the SBA presumes social
disadvantage based on membership in certain minority groups, just
as in the 8(a) program, and again appears to require an
individualized, although "less restrictive," showing of economic
disadvantage, § 124.106(b). A different set of regulations,
however, says that members of minority groups wishing to
participate in the 8(d) subcontracting program are entitled to a
race-based presumption of social and economic disadvantage. 48 CFR
§§ 19.001,
208
19.703(a)(2) (1994). We are left with some uncertainty as to
whether participation in the 8(d) subcontracting program requires
an individualized showing of economic disadvantage. In any event,
in both the 8(a) and the 8(d) programs, the presumptions of
disadvantage are rebuttable if a third party comes forward with
evidence suggesting that the participant is not, in fact, either
economically or socially disadvantaged. 13 CFR §§ 124.111(c)-(d),
124.601-124.609 (1994).
The contract giving rise to the dispute in this case came about
as a result of the Surface Transportation and Uniform Relocation
Assistance Act of 1987, Pub. L. 100-17, 101 Stat. 132 (STURAA), a
DOT appropriations measure. Section 106(c)(1) of STURAA provides
that "not less than 10 percent" of the appropriated funds "shall be
expended with small business concerns owned and controlled by
socially and economically disadvantaged individuals." 101 Stat.
145. STURAA adopts the Small Business Act's definition of "socially
and economically disadvantaged individual," including the
applicable race-based presumptions, and adds that "women shall be
presumed to be socially and economically disadvantaged individuals
for purposes of this subsection." § 106(c)(2)(B), 101 Stat. 146.
STURAA also requires the Secretary of Transportation to establish
"minimum uniform criteria for State governments to use in
certifying whether a concern qualifies for purposes of this
subsection." § 106(c)(4), 101 Stat. 146. The Secretary has done so
in 49 CFR pt. 23, subpt. D (1994). Those regulations say that the
certifying authority should presume both social and economic
disadvantage (i.
e., eligibility to participate) if the
applicant belongs to certain racial groups, or is a woman. 49 CFR §
23.62 (1994); 49 CFR pt. 23, subpt. D, App. C (1994). As with the
SBA programs, third parties may come forward with evidence in an
effort to rebut the presumption of disadvantage for a particular
business. 49 CFR § 23.69 (1994).
The operative clause in the contract in this case reads as
follows:
209
"Subcontracting. This subsection is supplemented to
include a Disadvantaged Business Enterprise (DBE) Development and
Subcontracting Provision as follows:
"Monetary compensation is offered for awarding subcontracts to
small business concerns owned and controlled by socially and
economically disadvantaged individuals ....
"A small business concern will be considered a DBE after it has
been certified as such by the U. S. Small Business Administration
or any State Highway Agency. Certification by other Government
agencies, counties, or cities may be acceptable on an individual
basis provided the Contracting Officer has determined the
certifying agency has an acceptable and viable DBE certification
program. If the Contractor requests payment under this provision,
the Contractor shall furnish the engineer with acceptable evidence
of the subcontractor(s) DBE certification and shall furnish one
certified copy of the executed subcontract(s).
"The Contractor will be paid an amount computed as follows:
"1. If a subcontract is awarded to one DBE, 10 percent of the
final amount of the approved DBE subcontract, not to exceed 1.5
percent of the original contract amount.
"2. If subcontracts are awarded to two or more DBEs, 10 percent
of the final amount of the approved DBE subcontracts, not to exceed
2 percent of the original contract amount." App. 24-26.
To benefit from this clause, Mountain Gravel had to hire a
subcontractor who had been certified as a small disadvantaged
business by the SBA, a state highway agency, or some other
certifying authority acceptable to the contracting officer. Any of
the three routes to such certification described above-SBA's Sea)
or Sed) program, or certification by a State
210
under the DOT regulations-would meet that requirement. The
record does not reveal how Gonzales obtained its certification as a
small disadvantaged business.
After losing the guardrail subcontract to Gonzales, Adarand
filed suit against various federal officials in the United States
District Court for the District of Colorado, claiming that the
race-based presumptions involved in the use of subcontracting
compensation clauses violate Adarand's right to equal protection.
The District Court granted the Government's motion for summary
judgment.
Adarand Constructors, Inc. v.
Skinner, 790
F. Supp. 240 (1992). The Court of Appeals for the Tenth Circuit
affirmed.
16 F.3d
1537 (1994). It understood our decision in
Fullilove v.
Klutznick, 448 U. S. 448 (1980), to have adopted "a lenient
standard, resembling intermediate scrutiny, in assessing" the
constitutionality of federal race-based action. 16 F. 3d, at 1544.
Applying that "lenient standard," as further developed in
Metro
Broadcasting, Inc. v.
FCC, 497 U. S. 547 (1990), the
Court of Appeals upheld the use of subcontractor compensation
clauses. 16 F. 3d, at 1547. We granted certiorari. 512 U. S. 1288
(1994).
II
Adarand, in addition to its general prayer for "such other and
further relief as to the Court seems just and equitable,"
specifically seeks declaratory and injunctive relief against any
future use of subcontractor compensation clauses. App. 22-23
(complaint). Before reaching the merits of Adarand's challenge, we
must consider whether Adarand has standing to seek forward-looking
relief. Adarand's allegation that it has lost a contract in the
past because of a subcontractor compensation clause of course
entitles it to seek damages for the loss of that contract (we
express no view, however, as to whether sovereign immunity would
bar such relief on these facts). But as we explained in
Los
Angeles v.
Lyons, 461 U. S. 95 (1983), the fact of past
injury, "while presumably affording [the plaintiff] standing to
claim damages ... , does
211
nothing to establish a real and immediate threat that he would
again" suffer similar injury in the future.
Id., at 105.
If Adarand is to maintain its claim for forward-looking relief,
our cases require it to allege that the use of subcontractor
compensation clauses in the future constitutes "an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical."
Lujan v.
Defenders of Wildlife, 504 U.
S. 555, 560 (1992) (footnote, citations, and internal quotation
marks omitted). Adarand's claim that the Government's use of
subcontractor compensation clauses denies it equal protection of
the laws of course alleges an invasion of a legally protected
interest, and it does so in a manner that is "particularized" as to
Adarand. We note that, contrary to respondents' suggestion, see
Brief for Respondents 29-30, Adarand need not demonstrate that it
has been, or will be, the low bidder on a Government contract. The
injury in cases of this kind is that a "discriminatory
classification prevent[s] the plaintiff from competing on an equal
footing."
Northeastern Fla. Chapter, Associated Gen. Contractors
of America v.
Jacksonville, 508 U. S. 656, 667
(1993). The aggrieved party "need not allege that he would have
obtained the benefit but for the barrier in order to establish
standing."
Id., at 666.
It is less clear, however, that the future use of subcontractor
compensation clauses will cause Adarand "imminent" injury. We said
in
Lujan that "[a]lthough 'imminence' is concededly a
somewhat elastic concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not too
speculative for Article III purposes-that the injury is
'certainly impending.'''
Lujan, supra, at 565, n. 2.
We therefore must ask whether Adarand has made an adequate showing
that sometime in the relatively near future it will bid on another
Government contract that offers financial incentives to a prime
contractor for hiring disadvantaged subcontractors.
212
We conclude that Adarand has satisfied this requirement.
Adarand's general manager said in a deposition that his company
bids on every guardrail project in Colorado. See Reply Brief for
Petitioner 5-A. According to documents produced in discovery, the
CFLHD let 14 prime contracts in Colorado that included guardrail
work between 1983 and 1990. Plaintiff's Motion for Summary Judgment
in No. 90C-1413, Exh. I, Attachment A (D. Colo.). Two of those
contracts do not present the kind of injury Adarand alleges here.
In one, the prime contractor did not subcontract out the guardrail
work; in another, the prime contractor was itself a disadvantaged
business, and in such cases the contract generally does not include
a subcontractor compensation clause.
Ibid.; see also
id., Supplemental Exhibits, Deposition of Craig Actis 14
(testimony of CFLHD employee that 8(a) contracts do not include
subcontractor compensation clauses). Thus, statistics from the
years 1983 through 1990 indicate that the CFLHD lets on average
1lf2 contracts per year that could injure Adarand in the manner it
alleges here. Nothing in the record suggests that the CFLHD has
altered the frequency with which it lets contracts that include
guardrail work. And the record indicates that Adarand often must
compete for contracts against companies certified as small
disadvantaged businesses. See id., Exh. F, Attachments 1-3. Because
the evidence in this case indicates that the CFLHD is likely to let
contracts involving guardrail work that contain a subcontractor
compensation clause at least once per year in Colorado, that
Adarand is very likely to bid on each such contract, and that
Adarand often must compete for such contracts against small
disadvantaged businesses, we are satisfied that Adarand has
standing to bring this lawsuit.
III
Respondents urge that "[t]he Subcontracting Compensation Clause
program is ... a program based on
disadvantage, not on
race," and thus that it is subject only to "the most
213
relaxed judicial scrutiny." Brief for Respondents 26. To the
extent that the statutes and regulations involved in this case are
race neutral, we agree. Respondents concede, however, that "the
race-based rebuttable presumption used in some certification
determinations under the Subcontracting Compensation Clause" is
subject to some heightened level of scrutiny.
Id., at 27.
The parties disagree as to what that level should be. (We note,
incidentally, that this case concerns only classifications based
explicitly on race, and presents none of the additional
difficulties posed by laws that, although facially race neutral,
result in racially disproportionate impact and are motivated by a
racially discriminatory purpose. See generally
Arlington
Heights v.
Metropolitan Housing Development Corp.,
429 U. S. 252
(1977);
Washington v.
Davis, 426 U. S. 229
(1976).)
Adarand's claim arises under the Fifth Amendment to the
Constitution, which provides that "No person shall ... be deprived
of life, liberty, or property, without due process of law."
Although this Court has always understood that Clause to provide
some measure of protection against
arbitrary treatment by
the Federal Government, it is not as explicit a guarantee of
equal treatment as the Fourteenth Amendment, which provides
that "No
State shall ... deny to any person within its
jurisdiction the equal protection of the laws" (emphasis added).
Our cases have accorded varying degrees of significance to the
difference in the language of those two Clauses. We think it
necessary to revisit the issue here.
A
Through the 1940's, this Court had routinely taken the view in
non-race-related cases that, "[u]nlike the Fourteenth Amendment,
the Fifth contains no equal protection clause and it provides no
guaranty against discriminatory legislation by Congress."
Detroit Bank v.
United States, 317 U. S. 329, 337
(1943); see also,
e. g., Helvering v.
Lerner Stores
Corp., 314 U. S.
463, 468 (1941);
LaBelle Iron Works v.
United
214
States, 256
U. S. 377, 392 (1921) ("Reference is made to cases decided
under the equal protection clause of the Fourteenth Amendment ... ;
but clearly they are not in point. The Fifth Amendment has no equal
protection clause"). When the Court first faced a Fifth Amendment
equal protection challenge to a federal racial classification, it
adopted a similar approach, with most unfortunate results. In
Hirabayashi v.
United States, 320 U. S. 81 (1943), the
Court considered a curfew applicable only to persons of Japanese
ancestry. The Court observed-correctly-that "[d]istinctions between
citizens solely because of their ancestry are by their very nature
odious to a free people whose institutions are founded upon the
doctrine of equality," and that "racial discriminations are in most
circumstances irrelevant and therefore prohibited."
Id., at
100. But it also cited
Detroit Bank for the proposition that
the Fifth Amendment "restrains only such discriminatory legislation
by Congress as amounts to a denial of due process," 320 U. S., at
100, and upheld the curfew because "circumstances within the
knowledge of those charged with the responsibility for maintaining
the national defense afforded a rational basis for the decision
which they made."
Id., at 102.
Eighteen months later, the Court again approved wartime measures
directed at persons of Japanese ancestry.
Korematsu v.
United States, 323 U. S. 214 (1944),
concerned an order that completely excluded such persons from
particular areas. The Court did not address the view, expressed in
cases like
Hirabayashi and
Detroit Bank, that the
Federal Government's obligation to provide equal protection differs
significantly from that of the States. Instead, it began by noting
that "all legal restrictions which curtail the civil rights of a
single racial group are immediately suspect ... [and] courts must
subject them to the most rigid scrutiny." 323 U. S., at 216. That
promising dictum might be read to undermine the view that the
Federal Government is under a lesser obligation to avoid injurious
racial classifications
215
than are the States. Cf. id., at 234-235 (Murphy, J.,
dissenting) ("[T]he order deprives all those within its scope of
the equal protection of the laws as guaranteed by the Fifth
Amendment"). But in spite of the "most rigid scrutiny" standard it
had just set forth, the Court then inexplicably relied on "the
principles we announced in the
Hirabayashi case," id., at
217, to conclude that, although "exclusion from the area in which
one's home is located is a far greater deprivation than constant
confinement to the home from 8 p. m. to 6 a. m.," id., at 218, the
racially discriminatory order was nonetheless within the Federal
Government's power. *
In
Bolling v.
Sharpe, 347 U. S. 497 (1954), the
Court for the first time explicitly questioned the existence of any
difference between the obligations of the Federal Government and
the States to avoid racial classifications.
Bolling did note
that "[t]he 'equal protection of the laws' is a more explicit
safeguard of prohibited unfairness than 'due process of law,'"
id., at 499. But
Bolling then concluded that, "[i]n
view of [the] decision that the Constitution prohibits the states
from maintaining racially segregated public schools, it would be
unthinkable that the same Constitution would impose a lesser duty
on the Federal Government."
Id., at 500.
Bolling's facts concerned school desegregation, but its
reasoning was not so limited. The Court's observations that
"[d]istinctions between citizens solely because of their ancestry
are by their very nature odious,"
Hirabayashi, supra, at
100, and that "all legal restrictions which curtail the civil
rights of a single racial group are immediately suspect,"
*Justices Roberts, Murphy, and Jackson filed vigorous dissents;
Justice Murphy argued that the challenged order "falls into the
ugly abyss of racism."
Korematsu, 323 U. S., at 233.
Congress has recently agreed with the dissenters' position, and has
attempted to make amends. See Pub. L. 100-383, § 2(a), 102 Stat.
903 ("The Congress recognizes that ... a grave injustice was done
to both citizens and permanent resident aliens of Japanese ancestry
by the evacuation, relocation, and internment of civilians during
World War II").
216
Korematsu, supra, at 216, carry no less force in the
context of federal action than in the context of action by the
Statesindeed, they first appeared in cases concerning action by the
Federal Government.
Bolling relied on those observations,
347 U. S., at 499, n. 3, and reiterated" 'that the Constitution of
the United States, in its present form, forbids, so far as civil
and political rights are concerned, discrimination
by the
General Government, or by the States, against any citizen
because of his race,'"
id., at 499 (quoting
Gibson v.
Mississippi, 162 U. S. 565, 591
(1896)) (emphasis added). The Court's application of that general
principle to the case before it, and the resulting imposition on
the Federal Government of an obligation equivalent to that of the
States, followed as a matter of course.
Later cases in contexts other than school desegregation did not
distinguish between the duties of the States and the Federal
Government to avoid racial classifications. Consider, for example,
the following passage from
McLaughlin v.
Florida,
379 U. S. 184, a
1964 case that struck down a race-based state law:
"[WJe deal here with a classification based upon the race of the
participants, which must be viewed in light of the historical fact
that the central purpose of the Fourteenth Amendment was to
eliminate racial discrimination emanating from official sources in
the States. This strong policy renders racial classifications
'constitutionally suspect,' Bolling v. Sharpe,
347 U. S. 497,
499; and subject to the 'most rigid scrutiny,' Korematsu v.
United States, 323 U. S. 214, 216; and
'in most circumstances irrelevant' to any constitutionally
acceptable legislative purpose, Hirabayashi v. United
States, 320 U. S.
81, 100." Id., at 191-192.
McLaughlin's reliance on cases involving federal action
for the standards applicable to a case involving state
legislation
217
suggests that the Court understood the standards for federal and
state racial classifications to be the same.
Cases decided after
McLaughlin continued to treat the
equal protection obligations imposed by the Fifth and the
Fourteenth Amendments as indistinguishable; one commentator
observed that "[i]n case after case, fifth amendment equal
protection problems are discussed on the assumption that fourteenth
amendment precedents are controlling." Karst, The Fifth Amendment's
Guarantee of Equal Protection, 55 N. C. L. Rev. 541, 554 (1977).
Loving v.
Virginia, 388 U. S. 1 (1967), which
struck down a race-based state law, cited
Korematsu for the
proposition that "the Equal Protection Clause demands that racial
classifications ... be subjected to the 'most rigid scrutiny.'" 388
U. S., at 11. The various opinions in
Frontiero v.
Richardson, 411 U. S. 677 (1973),
which concerned sex discrimination by the Federal Government, took
their equal protection standard of review from
Reed v.
Reed, 404 U. S.
71 (1971), a case that invalidated sex discrimination by a
State, without mentioning any possibility of a difference between
the standards applicable to state and federal action.
Frontiero, 411 U. S., at 682-684 (plurality opinion of
Brennan, J.); id., at 691 (Stewart, J., concurring in judgment);
id., at 692 (Powell, J., concurring in judgment). Thus, in 1975,
the Court stated explicitly that "[t]his Court's approach to Fifth
Amendment equal protection claims has always been precisely the
same as to equal protection claims under the Fourteenth Amendment."
Weinberger v.
Wiesenfeld, 420 U. S. 636, 638, n. 2;
see also
Buckley v.
Valeo, 424 U. S. 1, 93 (1976)
("Equal protection analysis in the Fifth Amendment area is the same
as that under the Fourteenth Amendment");
United States v.
Paradise, 480
U. S. 149, 166, n. 16 (1987) (plurality opinion of Brennan, J.)
("[T]he reach of the equal protection guarantee of the Fifth
Amendment is coextensive with that of the Fourteenth"). We do not
understand a few contrary suggestions appearing in cases in which
we found special deference to
218
the political branches of the Federal Government to be
appropriate,
e. g., Hampton v.
Mow Sun Wong, 426 U. S. 88, 100,
101-102, n. 21 (1976) (federal power over immigration), to detract
from this general rule.
B
Most of the cases discussed above involved classifications
burdening groups that have suffered discrimination in our society.
In 1978, the Court confronted the question whether race-based
governmental action designed to
benefit such groups should
also be subject to "the most rigid scrutiny."
Regents of Univ.
of Cal. v.
Bakke, 438 U. S. 265, involved
an equal protection challenge to a state-run medical school's
practice of reserving a number of spaces in its entering class for
minority students. The petitioners argued that "strict scrutiny"
should apply only to "classifications that disadvantage 'discrete
and insular minorities.'"
Id., at 287-288 (opinion of
Powell, J.) (citing
United States v.
Carolene Products
Co., 304 U. S.
144, 152, n. 4 (1938)).
Bakke did not produce an opinion
for the Court, but Justice Powell's opinion announcing the Court's
judgment rejected the argument. In a passage joined by Justice
White, Justice Powell wrote that "[t]he guarantee of equal
protection cannot mean one thing when applied to one individual and
something else when applied to a person of another color." 438 U.
S., at 289-290. He concluded that "[r]acial and ethnic distinctions
of any sort are inherently suspect and thus call for the most
exacting judicial examination."
Id., at 291. On the other
hand, four Justices in
Bakke would have applied a less
stringent standard of review to racial classifications "designed to
further remedial purposes," see id., at 359 (Brennan, White,
Marshall, and Blackmun, JJ., concurring in judgment in part and
dissenting in part). And four Justices thought the case should be
decided on statutory grounds.
Id., at 411-412,421 (STEVENS,
J., joined by Burger, C. J., and Stewart and REHN-
219
QUIST, JJ., concurring in judgment in part and dissenting in
part).
Two years after
Bakke, the Court faced another challenge
to remedial race-based action, this time involving action
undertaken by the Federal Government. In
Fullilove v.
Klutznick, 448
U. S. 448 (1980), the Court upheld Congress' inclusion of a 10%
set-aside for minority-owned businesses in the Public Works
Employment Act of 1977. As in
Bakke, there was no opinion
for the Court. Chief Justice Burger, in an opinion joined by
Justices White and Powell, observed that "[a]ny preference based on
racial or ethnic criteria must necessarily receive a most searching
examination to make sure that it does not conflict with
constitutional guarantees." 448 U. S., at 491. That opinion,
however, "d[id] not adopt, either expressly or implicitly, the
formulas of analysis articulated in such cases as
[Bakke]."
Id., at 492. It employed instead a two-part test which asked,
first, "whether the
objectives of thee] legislation are
within the power of Congress," and second, "whether the limited use
of racial and ethnic criteria, in the context presented, is a
constitutionally permissible
means for achieving the
congressional objectives."
Id., at 473. It then upheld the
program under that test, adding at the end of the opinion that the
program also "would survive judicial review under either 'test'
articulated in the several
Bakke opinions."
Id., at
492. Justice Powell wrote separately to express his view that the
plurality opinion had essentially applied "strict scrutiny" as
described in his
Bakke opinion-i.
e., it had
determined that the set-aside was "a necessary means of advancing a
compelling governmental interest"-and had done so correctly. 448 U.
S., at 496 (concurring opinion). Justice Stewart (joined by
thenJUSTICE REHNQUIST) dissented, arguing that the Constitution
required the Federal Government to meet the same strict standard as
the States when enacting racial classifications, id., at 523, and
n. 1, and that the program before the Court failed that standard.
JUSTICE STEVENS also dis-
220
sented, arguing that "[r]acial classifications are simply too
pernicious to permit any but the most exact connection between
justification and classification," id., at 537, and that the
program before the Court could not be characterized "as a 'narrowly
tailored' remedial measure."
Id., at 541. Justice Marshall
(joined by Justices Brennan and Blackmun) concurred in the
judgment, reiterating the view of four Justices in
Bakke
that any race-based governmental action designed to "remed[y] the
present effects of past racial discrimination" should be upheld if
it was "substantially related" to the achievement of an "important
governmental objective"i.
e., such action should be
subjected only to what we now call "intermediate scrutiny." 448 U.
S., at 518-519.
In
Wygant v.
Jackson Bd. of Ed., 476 U. S. 267 (1986), the
Court considered a Fourteenth Amendment challenge to another form
of remedial racial classification. The issue in
Wygant was
whether a school board could adopt race-based preferences in
determining which teachers to layoff. Justice Powell's plurality
opinion observed that "the level of scrutiny does not change merely
because the challenged classification operates against a group that
historically has not been subject to governmental discrimination,"
id., at 273, and stated the two-part inquiry as "whether the layoff
provision is supported by a compelling state purpose and whether
the means chosen to accomplish that purpose are narrowly tailored."
Id., at 274. In other words, "racial classifications of any
sort must be subjected to 'strict scrutiny.'"
Id., at 285
(O'CONNOR, J., concurring in part and concurring in judgment). The
plurality then concluded that the school board's interest in
"providing minority role models for its minority students, as an
attempt to alleviate the effects of societal discrimination," id.,
at 274, was not a compelling interest that could justify the use of
a racial classification. It added that "[s]ocietal discrimination,
without more, is too amorphous a basis for imposing a racially
classified remedy," id., at 276, and insisted instead that "a
public employer ... must
221
ensure that, before it embarks on an affirmative-action program,
it has convincing evidence that remedial action is warranted. That
is, it must have sufficient evidence to justify the conclusion that
there has been prior discrimination," id., at 277. Justice White
concurred only in the judgment, although he agreed that the school
board's asserted interests could not, "singly or together, justify
this racially discriminatory layoff policy."
Id., at 295.
Four Justices dissented, three of whom again argued for
intermediate scrutiny of remedial race-based government action.
Id., at 301-302 (Marshall, J., joined by Brennan and
Blackmun, JJ., dissenting).
The Court's failure to produce a majority opinion in
Bakke,
Fullilove, and
Wygant left unresolved the proper
analysis for remedial race-based governmental action. See
United
States v.
Paradise, 480 U. S., at 166 (plurality opinion
of Brennan, J.) ("[A]lthough this Court has consistently held that
some elevated level of scrutiny is required when a racial or ethnic
distinction is made for remedial purposes, it has yet to reach
consensus on the appropriate constitutional analysis");
Sheet
Metal Workers v.
EEOC, 478 U. S. 421, 480 (1986)
(plurality opinion of Brennan, J.). Lower courts found this lack of
guidance unsettling. See,
e. g., Kromnick v.
School Dist.
of Philadelphia, 739 F.2d
894, 901 (CA3 1984) ("The absence of an Opinion of the Court in
either
Bakke or
Fullilove and the concomitant failure
of the Court to articulate an analytic framework supporting the
judgments makes the position of the lower federal courts
considering the constitutionality of affirmative action programs
somewhat vulnerable"), cert. denied, 469 U. S. 1107 (1985);
Williams v.
New Orleans, 729 F.2d
1554, 1567 (CA5 1984) (en bane) (Higginbotham, J., concurring
specially);
South Florida Chapter of Associated General
Contractors of America, Inc. v.
Metropolitan Dade County,
Fla., 723 F.2d
846, 851 (CAll), cert. denied, 469 U. S. 871 (1984).
The Court resolved the issue, at least in part, in 1989.
Richmond v. J.
A. Croson Co., 488 U. S. 469 (1989),
concerned a
222
city's determination that 30% of its contracting work should go
to minority-owned businesses. A majority of the Court in
Croson held that "the standard of review under the Equal
Protection Clause is not dependent on the race of those burdened or
benefited by a particular classification," and that the single
standard of review for racial classifications should be "strict
scrutiny."
Id., at 493-494 (opinion of O'CONNOR, J., joined
by REHNQUIST, C. J., and White and KENNEDY, JJ.); id., at 520
(SCALIA, J., concurring in judgment) ("I agree ... with JUSTICE
O'CONNOR'S conclusion that strict scrutiny must be applied to all
governmental classification by race"). As to the classification
before the Court, the plurality agreed that "a state or local
subdivision ... has the authority to eradicate the effects of
private discrimination within its own legislative jurisdiction,"
id., at 491-492, but the Court thought that the city had not acted
with "a 'strong basis in evidence for its conclusion that remedial
action was necessary,'"
id., at 500 (majority opinion)
(quoting
Wygant, supra, at 277 (plurality opinion)). The
Court also thought it "obvious that [the] program is not narrowly
tailored to remedy the effects of prior discrimination." 488 U. S.,
at 508.
With
Croson, the Court finally agreed that the Fourteenth
Amendment requires strict scrutiny of all race-based action by
state and local governments. But
Croson of course had no
occasion to declare what standard of review the Fifth Amendment
requires for such action taken by the Federal Government.
Croson observed simply that the Court's "treatment of an
exercise of congressional power in
Fullilove cannot be
dispositive here," because
Croson's facts did not implicate
Congress' broad power under § 5 of the Fourteenth Amendment.
Id., at 491 (plurality opinion); see also id., at 522
(SCALIA, J., concurring in judgment) ("[W]ithout revisiting what we
held in
Fullilove ... , I do not believe our decision in
that case controls the one before us here"). On the other hand, the
Court subsequently indicated that
Croson had at least some
bearing on federal race-based ac-
223
tion when it vacated a decision upholding such action and
remanded for further consideration in light of
Croson. H. K.
Porter Co. v.
Metropolitan Dade County, 489 U. S. 1062
(1989); see also
Shurberg Broadcasting of Hartford, Inc. v.
FCC, 876 F.2d
902, 915, n. 16 (CADC 1989) (opinion of Silberman, J.) (noting
the Court's action in
H. K. Porter Co.), rev'd
sub nom.
Metro Broadcasting, Inc. v.
FCC, 497 U. S. 547 (1990).
Thus, some uncertainty persisted with respect to the standard of
review for federal racial classifications. See,
e. g., Mann
v.
Albany, 883 F.2d
999, 1006 (CAll 1989)
(Croson "may be applicable to
race-based classifications imposed by Congress");
Shurberg,
876 F. 2d, at 910 (noting the difficulty of extracting general
principles from the Court's fractured opinions); id., at 959 (Wald,
J., dissenting from denial of rehearing en bane)
("Croson
certainly did not resolve the substantial questions posed by
congressional programs which mandate the use of racial
preferences");
Winter Park Communications, Inc. v.
FCC, 873 F.2d
347, 366 (CADC 1989) (Williams, J., concurring in part and
dissenting in part) ("The unresolved ambiguity of
Fullilove
and
Croson leaves it impossible to reach a firm opinion as
to the evidence of discrimination needed to sustain a congressional
mandate of racial preferences"), aff'd
sub nom. Metro
Broadcasting, supra.
Despite lingering uncertainty in the details, however, 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, 476 U. S., at 273 (plurality opinion of Powell, J.);
Fullilove, 448 U. S., at 491 (opinion of Burger, C. J.); see
also id., at 523 (Stewart, J., dissenting) ("[A]ny official action
that treats a person differently on account of his race or ethnic
origin is inherently suspect");
McLaughlin, 379 U. S., at
192 ("[R]acial classifications [are] 'constitutionally suspect' ");
Hirabayashi, 320 U. S., at 100 ("Distinctions
224
between citizens solely because of their ancestry are by their
very nature odious to a free people"). 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, 488 U. S., at 494
(plurality opinion); id., at 520 (SCALIA, J., concurring in
judgment); see also
Bakke, 438 U. S., at 289-290 (opinion of
Powell, J.), i.
e., all racial classifications reviewable
under the Equal Protection Clause must be strictly scrutinized. 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., at 93; see also
Weinberger v.
Wiesenfeld, 420 U. S., at 638, n. 2;
Bolling v.
Sharpe, 347 U. S., at 500. Taken together,
these three 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. Justice Powell's defense of this conclusion
bears repeating here:
"If it is the individual who is entitled to judicial protection
against classifications based upon his racial or ethnic background
because such distinctions impinge upon personal rights, rather than
the individual only because of his membership in a particular
group, then constitutional standards may be applied consistently.
Political judgments regarding the necessity for the particular
classification may be weighed in the constitutional balance,
[Korematsu], but the standard of justification will remain
constant. This is as it should be, since those political judgments
are the product of rough compromise struck by contending groups
within the democratic process. When they touch upon an individual's
race or ethnic background, he is entitled to a judicial
determination that the burden he is asked to bear on that basis is
precisely tailored to serve a compelling
225
governmental interest. The Constitution guarantees that right to
every person regardless of his background. Shelley v.
Kraemer, 334 U. S. [1, 22 (1948)]." Bakke, supra, at
299 (opinion of Powell, J.) (footnote omitted).
A year later, however, the Court took a surprising turn.
Metro Broadcasting, Inc. v.
FCC, supra, involved a
Fifth Amendment challenge to two race-based policies of the Federal
Communications Commission (FCC). In
Metro Broadcasting, 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, supra, at 500. It did so by
holding that "benign" federal racial classifications need only
satisfy intermediate scrutiny, even though
Croson had
recently concluded that such classifications enacted by a State
must satisfy strict scrutiny. "[B]enign" federal racial
classifications, the Court said, "-even if those measures are not
'remedial' in the sense of being designed to compensate victims of
past governmental or societal discrimination-are constitutionally
permissible to the extent that they serve
important
governmental objectives within the power of Congress and are
substantially related to achievement of those objectives."
Metro Broadcasting, 497 U. S., at 564-565 (emphasis added).
The Court did not explain how to tell whether a racial
classification should be deemed "benign," other than to express
"confiden[ce] that an 'examination of the legislative scheme and
its history' will separate benign measures from other types of
racial classifications."
Id., at 564, n. 12 (citation
omitted).
Applying this test, the Court first noted that the FCC policies
at issue did not serve as a remedy for past discrimination.
Id., at 566. Proceeding on the assumption that the policies
were nonetheless "benign," it concluded that they served the
"important governmental objective" of "enhancing broadcast
diversity," id., at 566-567, and that they were
226
"substantially related" to that objective, id., at 569. It
therefore upheld the policies.
By adopting intermediate scrutiny as the standard of review for
congressionally mandated "benign" racial classifications,
Metro
Broadcasting departed from prior cases in two significant
respects. First, it turned its back on
Croson's explanation
of why strict scrutiny of all governmental racial classifications
is essential:
"Absent searching judicial inquiry into the justification for
such race-based measures, there is simply no way of determining
what classifications are 'benign' or 'remedial' and what
classifications are in fact motivated by illegitimate notions of
racial inferiority or simple racial politics. Indeed, the purpose
of strict scrutiny is to 'smoke out' illegitimate uses of race by
assuring that the legislative body is pursuing a goal important
enough to warrant use of a highly suspect tool. The test also
ensures that the means chosen 'fit' this compelling goal so closely
that there is little or no possibility that the motive for the
classification was illegitimate racial prejudice or stereotype."
Croson, supra, at 493 (plurality opinion of O'CONNOR,
J.).
We adhere to that view today, despite the surface appeal of
holding "benign" racial classifications to a lower standard,
because "it may not always be clear that a so-called preference is
in fact benign,"
Bakke, supra, at 298 (opinion of Powell,
J.). "[M]ore than good motives should be required when government
seeks to allocate its resources by way of an explicit racial
classification system." Days, Fullilove, 96 Yale
Second,
Metro Broadcasting squarely rejected one of the
three propositions established by the Court's earlier equal
protection cases, namely, congruence between the standards
applicable to federal and state racial classifications, and in so
doing also undermined the other two-skepticism of all racial
227
classifications and consistency of treatment irrespective of the
race of the burdened or benefited group. See
supra, at
223-224. Under
Metro Broadcasting, certain racial
classifications ("benign" ones enacted by the Federal Government)
should be treated less skeptically than others; and the race of the
benefited group is critical to the determination of which standard
of review to apply.
Metro Broadcasting was thus a
significant departure from much of what had come before it.
The three propositions undermined by
Metro Broadcasting
all derive from the basic principle that the Fifth and Fourteenth
Amendments to the Constitution 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,"
Hirabayashi, 320 U. S., at 100-should be subjected to
detailed judicial inquiry to ensure that the
personal right
to equal protection of the laws has not been infringed. These ideas
have long been central to this Court's understanding of equal
protection, and holding "benign" state and federal racial
classifications to different standards does not square with them.
"[A] free people whose institutions are founded upon the doctrine
of equality,"
ibid., should tolerate no retreat from the
principle that government may treat people differently because of
their race only for the most compelling reasons. Accordingly, we
hold today that all racial classifications, imposed by whatever
federal, state, or local governmental actor, must be analyzed by a
reviewing court under strict scrutiny. In other words, such
classifications are constitutional only if they are narrowly
tailored measures that further compelling governmental interests.
To the extent that
Metro Broadcasting is inconsistent with
that holding, it is overruled.
In dissent, JUSTICE STEVENS criticizes us for "deliver[ing] a
disconcerting lecture about the evils of governmental racial
classifications,"
post, at 242. With respect, we believe his
criticisms reflect a serious misunderstanding of our opinion.
228
JUSTICE STEVENS concurs in our view that courts should take a
skeptical view of all governmental racial classifications.
Ibid. He also allows that "[n]othing is inherently wrong
with applying a single standard to fundamentally different
situations, as long as that standard takes relevant differences
into account."
Post, at 246. What he fails to recognize is
that strict scrutiny
does take "relevant differences" into
account-indeed, that is its fundamental purpose. The point of
carefully examining the interest asserted by the government in
support of a racial classification, and the evidence offered to
show that the classification is needed, is precisely to distinguish
legitimate from illegitimate uses of race in governmental
decisionmaking. See
supra, at 226. And JUSTICE STEVENS
concedes that "some cases may be difficult to classify,"
post, at 245, and n. 4; all the more reason, in our view, to
examine all racial classifications carefully. Strict scrutiny does
not "trea[t] dissimilar race-based decisions as though they were
equally objectionable,"
post, at 245; to the contrary, it
evaluates carefully all governmental race-based decisions
in
order to decide which are constitutionally objectionable and
which are not. By requiring strict scrutiny of racial
classifications, we require courts to make sure that a governmental
classification based on race, which "so seldom provide[s] a
relevant basis for disparate treatment,"
Fullilove, 448 U.
S., at 534 (STEVENS, J., dissenting), is legitimate, before
permitting unequal treatment based on race to proceed.
JUSTICE STEVENS chides us for our "supposed inability to
differentiate between 'invidious' and 'benign' discrimination,"
because it is in his view sufficient that "people understand the
difference between good intentions and bad."
Post, at 245.
But, as we have just explained, the point of strict scrutiny is to
"differentiate between" permissible and impermissible governmental
use of race. And JUSTICE STEVENS himself has already explained in
his dissent in
Fullilove why "good intentions" alone are not
enough to sustain
229
a supposedly "benign" racial classification: "[E]ven though it
is not the actual predicate for this legislation, a statute of this
kind inevitably is perceived by many as resting on an assumption
that those who are granted this special preference are less
qualified in some respect that is identified purely by their race.
Because that
perception-especially when fostered by the Congress
of the United States-can only exacerbate rather than reduce
racial prejudice, it will delay the time when race will become a
truly irrelevant, or at least insignificant, factor.
Unless
Congress clearly articulates the need and basis for a racial
classification,
and also tailors the classification to its
justification, the Court should not uphold this kind of
statute."
Fullilove, 448 U. S., at 545 (dissenting opinion)
(emphasis added; footnote omitted); see also id., at 537 ("Racial
classifications are simply too pernicious to permit any but the
most exact connection between justification and classification");
Croson, 488 U. S., at 516-517 (STEVENS, J., concurring in
part and concurring in judgment) ("Although [the legislation at
issue] stigmatizes the disadvantaged class with the unproven charge
of past racial discrimination, it actually imposes a greater stigma
on its supposed beneficiaries");
supra, at 226; but cf.
post, at 245246 (STEVENS, J., dissenting). These passages
make a persuasive case for requiring strict scrutiny of
congressional racial classifications.
Perhaps it is not the standard of strict scrutiny itself, but
our use of the concepts of "consistency" and "congruence" in
conjunction with it, that leads JUSTICE STEVENS to dissent.
According to JUSTICE STEVENS, our view of consistency "equate[s]
remedial preferences with invidious discrimination,"
post,
at 246, and ignores the difference between "an engine of
oppression" and an effort "to foster equality in society," or, more
colorfully, "between a 'No Trespassing' sign and a welcome mat,"
post, at 243, 245. It does nothing of the kind. The
principle of consistency simply means that whenever the government
treats any person unequally be-
230
cause of his or her race, that person has suffered an injury
that falls squarely within the language and spirit of the
Constitution's guarantee of equal protection. It says nothing about
the ultimate validity of any particular law; that determination is
the job of the court applying strict scrutiny. The principle of
consistency explains the circumstances in which the injury
requiring strict scrutiny occurs. The application of strict
scrutiny, in turn, determines whether a compelling governmental
interest justifies the infliction of that injury.
Consistency
does recognize that any individual suffers an
injury when he or she is disadvantaged by the government because of
his or her race, whatever that race may be. This Court clearly
stated that principle in
Croson, see 488 U. S., at 493-494
(plurality opinion); id., at 520-521 (SCALIA, J., concurring in
judgment); see also
Shaw v.
Reno, 509 U. S. 630, 643
(1993);
Powers v.
Ohio, 499 U. S. 400, 410
(1991). JUSTICE STEVENS does not explain how his views square with
Croson, or with the long line of cases understanding equal
protection as a personal right.
JUSTICE STEVENS also claims that we have ignored any difference
between federal and state legislatures. But requiring that
Congress, like the States, enact racial classifications only when
doing so is necessary to further a "compelling interest" does not
contravene any principle of appropriate respect for a coequal
branch of the Government. It is true that various Members of this
Court have taken different views of the authority § 5 of the
Fourteenth Amendment confers upon Congress to deal with the problem
of racial discrimination, and the extent to which courts should
defer to Congress' exercise of that authority. See,
e. g., Metro
Broadcasting, 497 U. S., at 605-606 (O'CONNOR, J., dissenting);
Croson, 488 U. S., at 486-493 (opinion of O'CONNOR, J.,
joined by REHNQUIST, C. J., and White, J.); id., at 518-519
(KENNEDY, J., concurring in part and concurring in judgment); id.,
at 521-524 (SCALIA, J., concurring in judgment);
Fullilove,
448 U. S., at 472-473 (opinion of Burger,
231
C. J.); id., at 500-502, and nn. 2-3, 515, and n. 14 (Powell,
J., concurring); id., at 526-527 (Stewart, J., dissenting). We need
not, and do not, address these differences today. For now, it is
enough to observe that JUSTICE STEVENS' suggestion that any Member
of this Court has repudiated in this case his or her previously
expressed views on the subject,
post, at 249-253, 256-257,
is incorrect.
C
"Although adherence to precedent is not rigidly required in
constitutional cases, any departure from the doctrine of
stare
decisis demands special justification."
Arizona v.
Rumsey, 467 U.
S. 203, 212 (1984). In deciding whether this case presents such
justification, we recall Justice Frankfurter's admonition that
"stare decisis is a principle of policy and not a mechanical
formula of adherence to the latest decision, however recent and
questionable, when such adherence involves collision with a prior
doctrine more embracing in its scope, intrinsically sounder, and
verified by experience."
Helvering v.
Hallock,
309 U. S. 106,
119 (1940). Remaining true to an "intrinsically sounder" doctrine
established in prior cases better serves the values of
stare
decisis than would following a more recently decided case
inconsistent with the decisions that came before it; the latter
course would simply compound the recent error and would likely make
the unjustified break from previously established doctrine
complete. In such a situation, "special justification" exists to
depart from the recently decided case.
As we have explained,
Metro Broadcasting undermined
important principles of this Court's equal protection
jurisprudence, established in a line of cases stretching back over
50 years, see
supra, at 213-225. Those principles together
stood for an "embracing" and "intrinsically soun[d]" understanding
of equal protection "verified by experience," namely, that the
Constitution imposes upon federal, state, and local governmental
actors the same obligation to respect
232
the personal right to equal protection of the laws. This case
therefore presents precisely the situation described by Justice
Frankfurter in
Helvering: We cannot adhere to our most
recent decision without colliding with an accepted and established
doctrine. We also note that
Metro Broadcasting's application
of different standards of review to federal and state racial
classifications has been consistently criticized by commentators.
See,
e. g., Fried,
Metro Broadcasting, Inc. v. FCC:
Two Concepts of Equality, 104 Harv. L. Rev. 107, 113117 (1990)
(arguing that
Metro Broadcasting's adoption of different
standards of review for federal and state racial classifications
placed the law in an "unstable condition," and advocating strict
scrutiny across the board); Comment,
Metro Broadcasting, Inc. v.
FCC: Requiem for a Heavyweight, 69 Texas L. Rev. 125, 145-146
(1990) (same); Linder, Review of Affirmative Action After
Metro
Broadcasting v. FCC: The Solution Almost Nobody Wanted, 59 UMKC
L. Rev. 293, 297, 316-317 (1991) (criticizing "anomalous results as
exemplified by the two different standards of review"); Katz,
Public Affirmative Action and the Fourteenth Amendment: The
Fragmentation of Theory After
Richmond v. J.
A. Croson
Co. and
Metro Broadcasting, Inc. v. Federal Communications
Commission, 17 T. Marshall L. Rev. 317, 319, 354-355, 357
(1992) (arguing that "the current fragmentation of doctrine must be
seen as a dangerous and seriously flawed approach to constitutional
interpretation," and advocating intermediate scrutiny across the
board).
Our past practice in similar situations supports our action
today. In
United States v.
Dixon, 509 U. S. 688 (1993), we
overruled the recent case of
Grady v.
Corbin,
495 U. S. 508
(1990), because
Grady "lack[ed] constitutional roots" and
was "wholly inconsistent with earlier Supreme Court precedent."
Dixon, supra, at 704, 712. In
Solorio v.
United
States, 483 U. S. 435 (1987), we overruled
O'Callahan v.
Parker, 395 U. S. 258 (1969), which had caused "confusion"
and had rejected "an unbroken line of decisions from 1866 to 1960."
So-
233
lorio, supra, at 439-441, 450-451. And in
Continental
T. V:,
Inc. v.
GTE Sylvania Inc., 433 U. S. 36 (1977), we
overruled
United States v.
Arnold, Schwinn &
Co., 388 U. S.
365 (1967), which was "an abrupt and largely unexplained
departure" from precedent, and of which "[t]he great weight of
scholarly opinion ha[d] been critical."
Continental T. V:,
supra, at 4748, 58. See also,
e. g., Payne v.
Tennessee, 501
U. S. 808, 830 (1991) (overruling
Booth v.
Maryland, 482
U. S. 496 (1987), and
South Carolina v.
Gathers,
490 U. S. 805
(1989));
Monell v.
New York City Dept. of Social
Servs., 436 U. S.
658, 695701 (1978) (partially overruling
Monroe v.
Pape, 365 U.
S. 167 (1961), because
Monroe was a "departure from
prior practice" that had not engendered substantial reliance);
Swift &
Co. v.
Wickham, 382 U. S. 111, 128-129
(1965) (overruling
Kesler v.
Department of Public Safety
of Utah, 369 U. S. 153 (1962), to reaffirm
"pre-Kesler
precedent" and restore the law to the "view ... which this Court
has traditionally taken" in older cases).
It is worth pointing out the difference between the applications
of
stare decisis in this case and in
Planned Parenthood
of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992).
Casey explained how considerations of
stare decisis
inform the decision whether to overrule a long-established
precedent that has become integrated into the fabric of the law.
Overruling precedent of that kind naturally may have consequences
for "the ideal of the rule of law," id., at 854. In addition, such
precedent is likely to have engendered substantial reliance, as was
true in
Casey itself,
id., at 856 ("[F]or two decades
of economic and social developments, people have organized intimate
relationships and made choices that define their views of
themselves and their places in society, in reliance on the
availability of abortion in the event that contraception should
fail"). But in this case, as we have explained, we do not face a
precedent of that kind, because
Metro Broadcasting itself
departed from our prior cases-and did so quite recently. By
refusing to follow
234
Metro Broadcasting, then, we do not depart from the
fabric of the law; we restore it. We also note that reliance on a
case that has recently departed from precedent is likely to be
minimal, particularly where, as here, the rule set forth in that
case is unlikely to affect primary conduct in any event. Cf.
Allied-Bruce Terminix Coso v.
Dobson, 513 U. S. 265, 272 (1995)
(declining to overrule
Southland Corp. v.
Keating,
465 U. S. 1 (1984), where "private parties have likely written
contracts relying upon
Southland as authority" in the 10
years since
Southland was decided).
JUSTICE STEVENS takes us to task for what he perceives to be an
erroneous application of the doctrine of
stare decisis. But
again, he misunderstands our position. We have acknowledged that,
after
Croson, "some uncertainty persisted with respect to
the standard of review for federal racial classifications,"
supra, at 223, and we therefore do not say that we "merely
restor[e] the
status quo ante" today,
post, at 257.
But as we have described
supra, at 213-227, we think that
well-settled legal principles pointed toward a conclusion different
from that reached in
Metro Broadcasting, and we therefore
disagree with JUSTICE STEVENS that "the law at the time of that
decision was entirely open to the result the Court reached,"
post, at 257. We also disagree with JusTICE STEVENS that
Justice Stewart's dissenting opinion in
Fullilove supports
his "novelty" argument, see
post, at 258259, and n. 13.
Justice Stewart said that "[u]nder our Constitution, any official
action that treats a person differently on account of his race or
ethnic origin is inherently suspect and presumptively invalid," and
that "'[e]qual protection analysis in the Fifth Amendment area is
the same as that under the Fourteenth Amendment.'''
Fullilove, 448 U. S., at 523, and n. 1. He took the view
that "[t]he hostility of the Constitution to racial classifications
by government has been manifested in many cases decided by this
Court," and that "our cases have made clear that the Constitution
is
235
wholly neutral in forbidding such racial discrimination,
whatever the race may be of those who are its victims."
Id.,
at 524. Justice Stewart gave no indication that he thought he was
addressing a "novel" proposition,
post, at 259. Rather, he
relied on the fact that the text of the Fourteenth Amendment
extends its guarantee to "persons," and on cases like
Buckley,
Loving, McLaughlin, Bolling, Hirabayashi, and
Korematsu,
see
Fullilove, supra, at 524-526, as do we today. There is
nothing new about the notion that Congress, like the States, may
treat people differently because of their race only for compelling
reasons.
"The real problem," Justice Frankfurter explained, "is whether a
principle shall prevail over its later misapplications."
Helvering, 309 U. S., at 122.
Metro Broadcasting's
untenable distinction between state and federal racial
classifications lacks support in our precedent, and undermines the
fundamental principle of equal protection as a personal right. In
this case, as between that principle and "its later
misapplications," the principle must prevail.
D
Our action today makes explicit what Justice Powell thought
implicit in the
Fullilove lead opinion: Federal racial
classifications, like those of a State, must serve a compelling
governmental interest, and must be narrowly tailored to further
that interest. See
Fullilove, 448 U. S., at 496 (concurring
opinion). (Recall that the lead opinion in
Fullilove "d[id]
not adopt ... the formulas of analysis articulated in such cases as
[Bakke]." Id., at 492 (opinion of Burger, C. J.).) Of
course, it follows that to the extent (if any) that
Fullilove held federal racial classifications to be subject
to a less rigorous standard, it is no longer controlling. But we
need not decide today whether the program upheld in
Fullilove would survive strict scrutiny as our more recent
cases have defined it.
236
Some have questioned the importance of debating the proper
standard of review of race-based legislation. See,
e. g.,
post, at 247 (STEVENS, J., dissenting);
Croson, 488 U.
S., at 514-515, and n. 5 (STEVENS, J., concurring in part and
concurring in judgment); cf.
Metro Broadcasting, 497 U. S.,
at 610 (O'CONNOR, J., dissenting) ("This dispute regarding the
appropriate standard of review may strike some as a lawyers'
quibble over words"). But we agree with JUSTICE STEVENS that,
"[b]ecause racial characteristics so seldom provide a relevant
basis for disparate treatment, and because classifications based on
race are potentially so harmful to the entire body politic, it is
especially important that the reasons for any such classification
be clearly identified and unquestionably legitimate," and that
"[r]acial classifications are simply too pernicious to permit any
but the most exact connection between justification and
classification."
Fullilove, supra, at 533-535, 537
(dissenting opinion) (footnotes omitted). We think that requiring
strict scrutiny is the best way to ensure that courts will
consistently give racial classifications that kind of detailed
examination, both as to ends and as to means.
Korematsu
demonstrates vividly that even "the most rigid scrutiny" can
sometimes fail to detect an illegitimate racial classification,
compare
Korematsu, 323 U. S., at 223 ("To cast this case
into outlines of racial prejudice, without reference to the real
military dangers which were presented, merely confuses the issue.
Korematsu was not excluded from the Military Area because of
hostility to him or his race"), with Pub. L. 100-383, § 2(a), 102
Stat. 903904 ("[T]hese actions [of relocating and interning
civilians of Japanese ancestry] were carried out without adequate
security reasons ... and were motivated largely by racial
prejudice, wartime hysteria, and a failure of political
leadership"). Any retreat from the most searching judicial inquiry
can only increase the risk of another such error occurring in the
future.
237
Finally, we wish to dispel the notion that strict scrutiny is
"strict in theory, but fatal in fact."
Fullilove, supra, at
519 (Marshall, J., concurring in judgment). The unhappy persistence
of both the practice and the lingering effects of racial
discrimination against minority groups in this country is an
unfortunate reality, and government is not disqualified from acting
in response to it. As recently as 1987, for example, every Justice
of this Court agreed that the Alabama Department of Public Safety's
"pervasive, systematic, and obstinate discriminatory conduct"
justified a narrowly tailored racebased remedy. See
United
States v.
Paradise, 480 U. S., at 167 (plurality opinion
of Brennan, J.); id., at 190 (STEVENS, J., concurring in judgment);
id., at 196 (O'CONNOR, J., dissenting). When race-based action is
necessary to further a compelling interest, such action is within
constitutional constraints if it satisfies the "narrow tailoring"
test this Court has set out in previous cases.
IV
Because our decision today alters the playing field in some
important respects, we think it best to remand the case to the
lower courts for further consideration in light of the principles
we have announced. The Court of Appeals, following
Metro
Broadcasting and
Fullilove, analyzed the case in terms
of intermediate scrutiny. It upheld the challenged statutes and
regulations because it found them to be "narrowly tailored to
achieve [their]
significant governmental purpose of
providing subcontracting opportunities for small disadvantaged
business enterprises." 16 F. 3d, at 1547 (emphasis added). The
Court of Appeals did not decide the question whether the interests
served by the use of subcontractor compensation clauses are
properly described as "compelling." It also did not address the
question of narrow tailoring in terms of our strict scrutiny cases,
by asking, for example, whether there was "any consideration of the
use of
238
race-neutral means to increase minority business participation"
in government contracting,
Croson, supra, at 507, or whether
the program was appropriately limited such that it "will not last
longer than the discriminatory effects it is designed to
eliminate,"
Fullilove, supra, at 513 (Powell, J.,
concurring).
Moreover, unresolved questions remain concerning the details of
the complex regulatory regimes implicated by the use of
subcontractor compensation clauses. For example, the SBA's 8(a)
program requires an individualized inquiry into the economic
disadvantage of every participant, see 13 CFR § 124.106(a) (1994),
whereas the DOT's regulations implementing STURAA § 106(c) do
not require certifying authorities to make such
individualized inquiries, see 49 CFR § 23.62 (1994); 49 CFR pt. 23,
subpt. D, App. C (1994). And the regulations seem unclear as to
whether 8(d) subcontractors must make individualized showings, or
instead whether the race-based presumption applies both to social
and economic disadvantage, compare 13 CFR § 124.106(b)
(1994) (apparently requiring 8(d) participants to make an
individualized showing), with 48 CFR § 19.703(a)(2) (1994)
(apparently allowing 8(d) subcontractors to invoke the racebased
presumption for social and economic disadvantage). See generally
Part I,
supra. We also note an apparent discrepancy between
the definitions of which socially disadvantaged individuals qualify
as economically disadvantaged for the 8(a) and 8(d) programs; the
former requires a showing that such individuals' ability to compete
has been impaired "as compared to others in the same or similar
line of business
who are not socially disadvantaged," 13 CFR
§ 124.106(a) (l)(i) (1994) (emphasis added), while the latter
requires that showing only "as compared to others in the same or
similar line of business," § 124.106(b)(1). The question whether
any of the ways in which the Government uses subcontractor
compensation clauses can survive strict scrutiny, and any relevance
distinctions such as these may have to that ques-
239
tion, should be addressed in the first instance by the lower
courts.
Accordingly, the judgment of the Court of Appeals is vacated,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I join the opinion of the Court, except Part III-C, and except
insofar as it may be inconsistent with the following:
In my view, government can never have a "compelling interest" in
discriminating on the basis of race in order to "make up" for past
racial discrimination in the opposite direction. See
Richmond v. J.
A. Croson Co., 488 U. S. 469, 520 (1989)
(SCALIA, J., concurring in judgment). Individuals who have been
wronged by unlawful racial discrimination should be made whole; but
under our Constitution there can be no such thing as either a
creditor or a debtor race. That concept is alien to the
Constitution's focus upon the individual, see Arndt. 14, § 1
("[N]or shall any State ... deny
to any person" the equal
protection of the laws) (emphasis added), and its rejection of
dispositions based on race, see Arndt. 15, § 1 (prohibiting
abridgment of the right to vote "on account of race"), or based on
blood, see Art. III, § 3 ("[N]o Attainder of Treason shall work
Corruption of Blood"); Art. I, § 9, cl. 8 ("No Title of Nobility
shall be granted by the United States"). To pursue the concept of
racial entitlement-even for the most admirable and benign of
purposes-is to reinforce and preserve for future mischief the way
of thinking that produced race slavery, race privilege and race
hatred. In the eyes of government, we are just one race here. It is
American.
It is unlikely, if not impossible, that the challenged program
would survive under this understanding of strict scrutiny, but I am
content to leave that to be decided on remand.
240
JUSTICE THOMAS, concurring in part and concurring in the
judgment.
I agree with the majority's conclusion that strict scrutiny
applies to all government classifications based on race. I write
separately, however, to express my disagreement with the premise
underlying JUSTICE STEVENS' and JUSTICE GINSBURG'S dissents: that
there is a racial paternalism exception to the principle of equal
protection. I believe that there is a "moral [and] constitutional
equivalence,"
post, at 243 (STEVENS, J., dissenting),
between laws designed to subjugate a race and those that distribute
benefits on the basis of race in order to foster some current
notion of equality. Government cannot make us equal; it can only
recognize, respect, and protect us as equal before the law.
That these programs may have been motivated, in part, by good
intentions cannot provide refuge from the principle that under our
Constitution, the government may not make distinctions on the basis
of race. As far as the Constitution is concerned, it is irrelevant
whether a government's racial classifications are drawn by those
who wish to oppress a race or by those who have a sincere desire to
help those thought to be disadvantaged. There can be no doubt that
the paternalism that appears to lie at the heart of this program is
at war with the principle of inherent equality that underlies and
infuses our Constitution. See Declaration of Independence ("We hold
these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty, and the pursuit of
Happiness").
These programs not only raise grave constitutional questions,
they also undermine the moral basis of the equal protection
principle. Purchased at the price of immeasurable human suffering,
the equal protection principle reflects our Nation's understanding
that such classifications ultimately have a destructive impact on
the individual and our society. Unquestionably, "[i]nvidious
[racial] discrimination is an en-
241
gine of oppression,"
post, at 243 (STEVENS, J.,
dissenting). It is also true that "[r]emedial" racial preferences
may reflect "a desire to foster equality in society," ibid. But
there can be no doubt that racial paternalism and its unintended
consequences can be as poisonous and pernicious as any other form
of discrimination. So-called "benign" discrimination teaches many
that because of chronic and apparently immutable handicaps,
minorities cannot compete with them without their patronizing
indulgence. Inevitably, such programs engender attitudes of
superiority or, alternatively, provoke resentment among those who
believe that they have been wronged by the government's use of
race. These programs stamp minorities with a badge of inferiority
and may cause them to develop dependencies or to adopt an attitude
that they are "entitled" to preferences. Indeed, JUSTICE STEVENS
once recognized the real harms stemming from seemingly "benign"
discrimination. See
Fullilove v.
Klutznick, 448 U. S. 448, 545 (1980)
(STEVENS, J., dissenting) (noting that "remedial" race legislation
"is perceived by many as resting on an assumption that those who
are granted this special preference are less qualified in some
respect that is identified purely by their race").
In my mind, government-sponsored racial discrimination based on
benign prejudice is just as noxious as discrimination inspired by
malicious prejudice. * In each instance, it is racial
discrimination, plain and simple.
*It should be obvious that every racial classification helps, in
a narrow sense, some races and hurts others. As to the races
benefited, the classification could surely be called "benign."
Accordingly, whether a law relying upon racial taxonomy is "benign"
or "malign,"
post, at 275 (GINSBURG, J., dissenting); see
also
post, at 247 (STEVENS, J., dissenting) (addressing
differences between "invidious" and "benign" discrimination),
either turns on "'whose ox is gored,'"
Regents of Univ. of
Gal. v.
Bakke, 438 U. S. 265, 295, n. 35
(1978) (Powell, J.) (quoting, A. Bickel, The Morality of Consent
133 (1975)), or on distinctions found only in the eye of the
beholder.
242
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
Instead of deciding this case in accordance with controlling
precedent, the Court today delivers a disconcerting lecture about
the evils of governmental racial classifications. For its text the
Court has selected three propositions, represented by the bywords
"skepticism," "consistency," and "congruence." See
ante, at
223-224. I shall comment on each of these propositions, then add a
few words about
stare decisis, and finally explain why I
believe this Court has a duty to affirm the judgment of the Court
of Appeals.
I
The Court's concept of skepticism is, at least in principle, a
good statement of law and of common sense. Undoubtedly, a court
should be wary of a governmental decision that relies upon a racial
classification. "Because racial characteristics so seldom provide a
relevant basis for disparate treatment, and because classifications
based on race are potentially so harmful to the entire body
politic," a reviewing court must satisfy itself that the reasons
for any such classification are "clearly identified and
unquestionably legitimate."
Fullilove v.
Klutznick,
448 U. S. 448,
533-535 (1980) (STEVENS, J., dissenting). This principle is
explicit in Chief Justice Burger's opinion, id., at 480; in Justice
Powell's concurrence,
id., at 496; and in my dissent in
Fullilove, id., at 533-534. I welcome its renewed
endorsement by the Court today. But, as the opinions in
Fullilove demonstrate, substantial agreement on the standard
to be applied in deciding difficult cases does not necessarily lead
to agreement on how those cases actually should or will be
resolved. In my judgment, because uniform standards are often
anything but uniform, we should evaluate the Court's comments on
"consistency," "congruence," and
stare decisis with the same
type of skepticism that the Court advocates for the underlying
issue.
243
II
The Court's concept of "consistency" assumes that there is no
significant difference between a decision by the majority to impose
a special burden on the members of a minority race and a decision
by the majority to provide a benefit to certain members of that
minority notwithstanding its incidental burden on some members of
the majority. In my opinion that assumption is untenable. There is
no moral or constitutional equivalence between a policy that is
designed to perpetuate a caste system and one that seeks to
eradicate racial subordination. Invidious discrimination is an
engine of oppression, subjugating a disfavored group to enhance or
maintain the power of the majority. Remedial race-based preferences
reflect the opposite impulse: a desire to foster equality in
society. No sensible conception of the Government's constitutional
obligation to "govern impartially," Hampton v. Mow Sun Wong,
426 U. S. 88,100
(1976), should ignore this distinction.1
1 As JUSTICE GINSBURG observes,
post, at 275-276, the
majority's "flexible" approach to "strict scrutiny" may well take
into account differences between benign and invidious programs. The
majority specifically notes that strict scrutiny can accommodate"
'relevant differences,'"
ante, at 228; surely the intent of
a government actor and the effects of a program are relevant to its
constitutionality. See
Missouri v.
Jenkins, ante, at
112 (O'CONNOR, J., concurring) ("[T]ime and again, we have
recognized the ample authority legislatures possess to combat
racial injustice .... It is only by applying strict scrutiny that
we can distinguish between unconstitutional discrimination and
narrowly tailored remedial programs that legislatures may enact to
further the compelling governmental interest in redressing the
effects of past discrimination").
Even if this is so, however, I think it is unfortunate that the
majority insists on applying the label "strict scrutiny" to benign
race-based programs. That label has usually been understood to
spell the death of any governmental action to which a court may
apply it. The Court suggests today that "strict scrutiny" means
something different-something less strict-when applied to benign
racial classifications. Although I agree that benign programs
deserve different treatment than invidious programs, there is a
danger that the fatal language of "strict scrutiny" will
244
To illustrate the point, consider our cases addressing the
Federal Government's discrimination against J apaneseAmericans
during World War II,
Hirabayashi v.
United States,
320 U. S. 81
(1943), and
Korematsu v.
United States, 323 U. S. 214 (1944). The
discrimination at issue in those cases was invidious because the
Government imposed special burdens-a curfew and exclusion from
certain areas on the West CoasV-on the members of a minority class
defined by racial and ethnic characteristics. Members of the same
racially defined class exhibited exceptional heroism in the service
of our country during that war. Now suppose Congress decided to
reward that service with a federal program that gave all
Japanese-American veterans an extraordinary preference in
Government employment. Cf.
Personnel Administrator of Mass.
v.
Feeney, 442
U. S. 256 (1979). If Congress had done so, the same racial
characteristics that motivated the discriminatory burdens in
Hirabayashi and
Korematsu would have defined the
preferred class of veterans. Nevertheless, "consistency" surely
would not require us to describe the incidental burden on everyone
else in the country as "odious" or "invidious" as those terms were
used in those cases. We should reject a concept of "consistency"
that would view the special preferences that the National
Government has provided to Native Americans since 18343
skew the analysis and place well-crafted benign programs at
unnecessary risk.
2 These were, of course, neither the sole nor the most shameful
burdens the Government imposed on Japanese-Americans during that
War. They were, however, the only such burdens this Court had
occasion to address in
Hirabayashi and
Korematsu. See
Korematsu, 323 U. S., at 223 ("Regardless of the true nature
of the assembly and relocation centers ... we are dealing
specifically with nothing but an exclusion order").
3 See
Morton v.
Mancari, 417 U. S. 535, 541
(1974). To be eligible for the preference in 1974, an individual
had to" 'be one fourth or more degree Indian blood and be a member
of a Federally-recognized tribe.'''
Id., at 553, n. 24,
quoting 44 BIAM 335, 3.1 (1972). We concluded that the classi-
245
as comparable to the official discrimination against
AfricanAmericans that was prevalent for much of our history.
The consistency that the Court espouses would disregard the
difference between a "No Trespassing" sign and a welcome mat. It
would treat a Dixiecrat Senator's decision to vote against Thurgood
Marshall's confirmation in order to keep African-Americans off the
Supreme Court as on a par with President Johnson's evaluation of
his nominee's race as a positive factor. It would equate a law that
made black citizens ineligible for military service with a program
aimed at recruiting black soldiers. An attempt by the majority to
exclude members of a minority race from a regulated market is
fundamentally different from a subsidy that enables a relatively
small group of newcomers to enter that market. An interest in
"consistency" does not justify treating differences as though they
were similarities.
The Court's explanation for treating dissimilar race-based
decisions as though they were equally objectionable is a supposed
inability to differentiate between "invidious" and "benign"
discrimination.
Ante, at 225-226. But the term "affirmative
action" is common and well understood. Its presence in everyday
parlance shows that people understand the difference between good
intentions and bad. As with any legal concept, some cases may be
difficult to classify,4 but our equal protection jurisprudence has
identified a critical difference between state action that imposes
burdens on a
fication was not "racial" because it did not encompass all
Native Americans. 417 U. S., at 553-554. In upholding it, we relied
in part on the plenary power of Congress to legislate on behalf of
Indian tribes.
Id., at 551-552. In this case respondents
rely, in part, on the fact that not all members of the preferred
minority groups are eligible for the preference, and on the special
power to legislate on behalf of minorities granted to Congress by §
5 of the Fourteenth Amendment.
4 For example, in
Richmond v. J.
A. Croson Co.,
488 U. S. 469
(1989), a majority of the members of the city council that enacted
the race-based set-aside were of the same race as its
beneficiaries.
246
disfavored few and state action that benefits the few "in spite
of" its adverse effects on the many.
Feeney, 442 U. S., at
279.
Indeed, our jurisprudence has made the standard to be applied in
cases of invidious discrimination turn on whether the
discrimination is "intentional," or whether, by contrast, it merely
has a discriminatory "effect."
Washington v.
Davis,
426 U. S. 229
(1976). Surely this distinction is at least as subtle, and at least
as difficult to apply, see id., at 253-254 (concurring opinion), as
the usually obvious distinction between a measure intended to
benefit members of a particular minority race and a measure
intended to burden a minority race. A state actor inclined to
subvert the Constitution might easily hide bad intentions in the
guise of unintended "effects"; but I should think it far more
difficult to enact a law intending to preserve the majority's
hegemony while casting it plausibly in the guise of affirmative
action for minorities.
Nothing is inherently wrong with applying a single standard to
fundamentally different situations, as long as that standard takes
relevant differences into account. For example, if the Court in all
equal protection cases were to insist that differential treatment
be justified by relevant characteristics of the members of the
favored and disfavored classes that provide a legitimate basis for
disparate treatment, such a standard would treat dissimilar cases
differently while still recognizing that there is, after all, only
one Equal Protection Clause. See
Cleburne v.
Cleburne
Living Center, Inc., 473 U. S. 432, 451-455 (1985) (STEVENS,
J., concurring);
San Antonio Independent School Dist. v.
Rodriguez, 411
U. S. 1,98110 (1973) (Marshall, J., dissenting). Under such a
standard, subsidies for disadvantaged businesses may be
constitutional though special taxes on such businesses would be
invalid. But a single standard that purports to equate remedial
preferences with invidious discrimination cannot be defended in the
name of "equal protection."
247
Moreover, the Court may find that its new "consistency" approach
to race-based classifications is difficult to square with its
insistence upon rigidly separate categories for discrimination
against different classes of individuals. For example, as the law
currently stands, the Court will apply "intermediate scrutiny" to
cases of invidious gender discrimination and "strict scrutiny" to
cases of invidious race discrimination, while applying the same
standard for benign classifications as for invidious ones. If this
remains the law, then today's lecture about "consistency" will
produce the anomalous result that the Government can more easily
enact affirmative-action programs to remedy discrimination against
women than it can enact affirmative-action programs to remedy
discrimination against African-Americans-even though the primary
purpose of the Equal Protection Clause was to end discrimination
against the former slaves. See
Associated General Contractors of
Cal., Inc. v.
San Francisco, 813 F.2d
922 (CA9 1987) (striking down racial preference under strict
scrutiny while upholding gender preference under intermediate
scrutiny). When a court becomes preoccupied with abstract
standards, it risks sacrificing common sense at the altar of formal
consistency.
As a matter of constitutional and democratic principle, a
decision by representatives of the majority to discriminate against
the members of a minority race is fundamentally different from
those same representatives' decision to impose incidental costs on
the majority of their constituents in order to provide a benefit to
a disadvantaged minority.5 Indeed,
5 In his concurrence, JUSTICE THOMAS argues that the most
significant cost associated with an affirmative-action program is
its adverse stigmatic effect on its intended beneficiaries.
Ante, at 240-241. Although I agree that this cost may be
more significant than many people realize, see
Fullilove v.
Klutznick, 448
U. S. 448, 545 (1980) (STEVENS, J., dissenting), I do not think
it applies to the facts of this case. First, this is not an
argument that petitioner Adarand, a white-owned business, has
standing to advance. No beneficiaries of the specific program under
attack today have challenged its constitutionality-perhaps because
they do not find the prefer-
248
as I have previously argued, the former is virtually always
repugnant to the principles of a free and democratic society,
whereas the latter is, in some circumstances, entirely consistent
with the ideal of equality.
Wygant v.
Jackson Bd. of
Ed., 476 U. S.
267, 316-317 (1986) (STEVENS, J., dissenting).6
ences stigmatizing, or perhaps because their ability to opt out
of the program provides them all the relief they would need.
Second, even if the petitioner in this case were a minority-owned
business challenging the stigmatizing effect of this program, I
would not find JUSTICE THOMAS' extreme proposition-that there is a
moral and constitutional equivalence between an attempt to
subjugate and an attempt to redress the effects of a caste system,
ante, at 240-at all persuasive. It is one thing to question
the wisdom of affirmative-action programs: There are many
responsible arguments against them, including the one based upon
stigma, that Congress might find persuasive when it decides whether
to enact or retain race-based preferences. It is another thing
altogether to equate the many well-meaning and intelligent
lawmakers and their constituentswhether members of majority or
minority races-who have supported affirmative action over the
years, to segregationists and bigots.
Finally, although JUSTICE THOMAS is more concerned about the
potential effects of these programs than the intent of those who
enacted them (a proposition at odds with this Court's
jurisprudence, see
Washington v.
Davis, 426 U. S. 229 (1976), but
not without a strong element of common sense, see
id., at
252-256 (STEVENS, J., concurring);
id., at 256-270 (Brennan,
J., dissenting)), I am not persuaded that the psychological damage
brought on by affirmative action is as severe as that engendered by
racial subordination. That, in any event, is a judgment the
political branches can be trusted to make. In enacting
affirmative-action programs, a legislature intends to remove
obstacles that have unfairly placed individuals of equal
qualifications at a competitive disadvantage. See
Fullilove,
448 U. S., at 521 (Marshall, J., concurring in judgment). I do
not believe such action, whether wise or unwise, deserves such an
invidious label as "racial paternalism,"
ante, at 240
(opinion of THOMAS, J.). If the legislature is persuaded that its
program is doing more harm than good to the individuals it is
designed to benefit, then we can expect the legislature to remedy
the problem. Significantly, this is not true of a government action
based on invidious discrimination.
6 As I noted in
Wygant:
"There is ... a critical difference between a decision to
exclude a member of a minority race because of his or her
skin color and a decision
249
By insisting on a doctrinaire notion of "consistency" in the
standard applicable to all race-based governmental actions, the
Court obscures this essential dichotomy.
III
The Court's concept of "congruence" assumes that there is no
significant difference between a decision by the Congress of the
United States to adopt an affirmative-action program and such a
decision by a State or a municipality. In my opinion that
assumption is untenable. It ignores important practical and legal
differences between federal and state or local decisionmakers.
These differences have been identified repeatedly and
consistently both in opinions of the Court and in separate opinions
authored by Members of today's majority. Thus, in
Metro
Broadcasting, Inc. v.
FCC, 497 U. S. 547 (1990), in
which we upheld a federal program designed to foster racial
diversity in broadcasting, we identified the special "institu-
to
include more members of the minority in a school
faculty for that reason.
"The exclusionary decision rests on the false premise that
differences in race, or in the color of a person's skin, reflect
real differences that are relevant to a person's right to share in
the blessings of a free society. As noted, that premise is 'utterly
irrational,'
Cleburne v.
Cleburne Living Center,
473 U. S. 432,
452 (1985), and repugnant to the principles of a free and
democratic society. Nevertheless, the fact that persons of
different races do, indeed have differently colored skin, may give
rise to a belief that there is some significant difference between
such persons. The inclusion of minority teachers in the educational
process inevitably tends to dispel that illusion whereas their
exclusion could only tend to foster it. The inclusionary decision
is consistent with the principle that all men are created equal;
the exclusionary decision is at war with that principle. One
decision accords with the Equal Protection Clause of the Fourteenth
Amendment; the other does not. Thus, consideration of whether the
consciousness of race is exclusionary or inclusionary plainly
distinguishes the Board's valid purpose in this case from a
race-conscious decision that would reinforce assumptions of
inequality." 476 U. S., at 316-317 (dissenting opinion).
250
tional competence" of our National Legislature.
Id., at
563. "It is of overriding significance in these cases," we were
careful to emphasize, "that the FCC's minority ownership programs
have been specifically approved-indeed, mandated-by Congress."
Ibid. We recalled the several opinions in
Fullilove
that admonished this Court to "'approach our task with appropriate
deference to the Congress, a coequal branch charged by the
Constitution with the power to "provide for the ... general Welfare
of the United States" and "to enforce, by appropriate legislation,"
the equal protection guarantees of the Fourteenth Amendment.'
[Fullilove, 448 U. S.], at 472; see also
id., at 491;
id., at 510, and 515-516, n. 14 (Powell, J., concurring);
id., at 517-520 (MARSHALL, J., concurring in judgment)." 497 U. S.,
at 563. We recalled that the opinions of Chief Justice Burger and
Justice Powell in
Fullilove had "explained that deference
was appropriate in light of Congress' institutional competence as
the National Legislature, as well as Congress' powers under the
Commerce Clause, the Spending Clause, and the Civil War
Amendments." 497 U. S., at 563 (citations and footnote
omitted).
The majority in
Metro Broadcasting and the plurality in
Fullilove were not alone in relying upon a critical
distinction between federal and state programs. In his separate
opinion in
Richmond v. J.
A. Croson Co., 488 U. S. 469, 520-524
(1989), JUSTICE SCALIA discussed the basis for this distinction. He
observed that "it is one thing to permit racially based conduct by
the Federal Government-whose legislative powers concerning matters
of race were explicitly enhanced by the Fourteenth Amendment, see
U. S. Const., Arndt. 14, § 5-and quite another to permit it by the
precise entities against whose conduct in matters of race that
Amendment was specifically directed, see Arndt. 14, § 1."
Id., at 521-522. Continuing, JUSTICE SCALIA explained why a
"sound distinction between federal and state (or local) action
based on race rests not only upon the substance of the
251
Civil War Amendments, but upon social reality and governmental
theory."
Id., at 522.
"What the record shows, in other words, is that racial
discrimination against any group finds a more ready expression at
the state and local than at the federal level. To the children of
the Founding Fathers, this should come as no surprise. An acute
awareness of the heightened danger of oppression from political
factions in small, rather than large, political units dates to the
very beginning of our national history. See G. Wood, The Creation
of the American Republic, 1776-1787, pp. 499-506 (1969). As James
Madison observed in support of the proposed Constitution's
enhancement of national powers:
" 'The smaller the society, the fewer probably will be the
distinct parties and interests composing it; the fewer the distinct
parties and interests, the more frequently will a majority be found
of the same party; and the smaller the number of individuals
composing a majority, and the smaller the compass within which they
are placed, the more easily will they concert and execute their
plan of oppression. Extend the sphere and you take in a greater
variety of parties and interests; you make it less probable that a
majority of the whole will have a common motive to invade the
rights of other citizens; or if such a common motive exists, it
will be more difficult for all who feel it to discover their own
strength and to act in unison with each other.' The Federalist No.
10, pp. 82-84 (C. Rossiter ed. 1961)." Id., at 523 (opinion
concurring in judgment).
In her plurality opinion in
Croson, JUSTICE O'CONNOR also
emphasized the importance of this distinction when she responded to
the city's argument that
Fullilove was controlling. She
wrote:
252
"What appellant ignores is that Congress, unlike any State or
political subdivision, has a specific constitutional mandate to
enforce the dictates of the Fourteenth Amendment. The power to
'enforce' may at times also include the power to define situations
which Congress determines threaten principles of equality
and to adopt prophylactic rules to deal with those situations. The
Civil War Amendments themselves worked a dramatic change in the
balance between congressional and state power over matters of
race." 488 U. S., at 490 (joined by REHNQUIST, C. J., and White,
J.) (citations omitted).
An additional reason for giving greater deference to the
National Legislature than to a local lawmaking body is that federal
affirmative-action programs represent the will of our entire
Nation's elected representatives, whereas a state or local program
may have an impact on nonresident entities who played no part in
the decision to enact it. Thus, in the state or local context,
individuals who were unable to vote for the local representatives
who enacted a race-conscious program may nonetheless feel the
effects of that program. This difference recalls the goals of the
Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, which permits
Congress to legislate on certain matters of national importance
while denying power to the States in this area for fear of undue
impact upon out-of-state residents. See
Southern Pacific Co.
v.
Arizona ex rel. Sullivan, 325 U. S. 761, 767-768,
n. 2 (1945) ("[T]o the extent that the burden of state regulation
falls on interests outside the state, it is unlikely to be
alleviated by the operation of those political restraints normally
exerted when interests within the state are affected").
Ironically, after all of the time, effort, and paper this Court
has expended in differentiating between federal and state
affirmative action, the majority today virtually ignores the issue.
See
ante, at 230-231. It provides not a word of direct
explanation for its sudden and enormous departure from
253
the reasoning in past cases. Such silence, however, cannot erase
the difference between Congress' institutional competence and
constitutional authority to overcome historic racial subjugation
and the States' lesser power to do so.
Presumably, the majority is now satisfied that its theory of
"congruence" between the substantive rights provided by the Fifth
and Fourteenth Amendments disposes of the objection based upon
divided constitutional powers. But it is one thing to say (as no
one seems to dispute) that the Fifth Amendment encompasses a
general guarantee of equal protection as broad as that contained
within the Fourteenth Amendment. It is another thing entirely to
say that Congress' institutional competence and constitutional
authority entitles it to no greater deference when it enacts a
program designed to foster equality than the deference due a state
legislature.7 The latter is an extraordinary proposition; and, as
the foregoing discussion demonstrates, our precedents have rejected
it explicitly and repeatedly.8
7Despite the majority's reliance on
Korematsu v.
United States, 323 U. S. 214 (1944),
ante, at
214-215, that case does not stand for the proposition that federal
remedial programs are subject to strict scrutiny. Instead,
Korematsu specifies that "all legal restrictions
which
curtail the civil rights of a single racial group are
immediately suspect." 323 U. S., at 216, quoted
ante, at 214
(emphasis added). The programs at issue in this case (as in most
affirmative-action cases) do not "curtail the civil rights of a
single racial group"; they benefit certain racial groups and impose
an indirect burden on the majority.
8We have rejected this proposition outside of the
affirmative-action context as well. In
Hampton v.
Mow Sun
Wong, 426 U. S.
88, 100 (1976), we held:
"The federal sovereign, like the States, must govern
impartially. The concept of equal justice under law is served by
the Fifth Amendment's guarantee of due process, as well as by the
Equal Protection Clause of the Fourteenth Amendment. Although both
Amendments require the same type of analysis, see
Buckley v.
Valeo, 424 U. S.
1, 93 [(1976)], the Court of Appeals correctly stated that the
two protections are not always coextensive. Not only does the
language of the two Amendments differ, but more importantly, there
may be overriding national interests which justify
254
Our opinion in
Metro Broadcasting relied on several
constitutional provisions to justify the greater deference we owe
to Congress when it acts with respect to private individuals. 497
U. S., at 563. In the programs challenged in this case, Congress
has acted both with respect to private individuals and, as in
Fullilove, with respect to the States themselves.9 When
Congress does this, it draws its power directly from § 5 of the
Fourteenth Amendment.1o That section reads:
selective federal legislation that would be unacceptable for an
individual State. On the other hand, when a federal rule is
applicable to only a limited territory, such as the District of
Columbia, or an insular possession, and when there is no special
national interest involved, the Due Process Clause has been
construed as having the same significance as the Equal Protection
Clause."
9 The funding for the preferences challenged in this case comes
from the Surface Transportation and Uniform Relocation Assistance
Act of 1987 (STURAA), 101 Stat. 132, in which Congress has granted
funds to the States in exchange for a commitment to foster
subcontracting by disadvantaged business enterprises, or "DBE's."
STURAA is also the source of funding for DBE preferences in federal
highway contracting. Approximately 98% of STURAA's funding is
allocated to the States. Brief for Respondents 38, n. 34. Moreover,
under STURAA States are empowered to certify businesses as
"disadvantaged" for purposes of receiving subcontracting
preferences in both state and federal contracts. STURAA §
106(c)(4), 101 Stat. 146.
In this case, Adarand has sued only the federal officials
responsible for implementing federal highway contracting policy; it
has not directly challenged DBE preferences granted in state
contracts funded by STURAA. It is not entirely clear, then, whether
the majority's "congruence" rationale would apply to federally
regulated state contracts, which may conceivably be within the
majority's view of Congress' § 5 authority even if the federal
contracts are not. See
Metro Broadcasting, 497 U. S., at
603-604 (O'CONNOR, J., dissenting). As I read the majority's
opinion, however, it draws no distinctions between direct federal
preferences and federal preferences achieved through subsidies to
States. The extent to which STURAA intertwines elements of direct
federal regulations with elements of federal conditions on grants
to the States would make such a distinction difficult to
sustain.
10 Because Congress has acted with respect to the States in
enacting STURAA, we need not revisit today the difficult question
of § 5's application to pure federal regulation of individuals.
255
"The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article." One of the
"provisions of this article" that Congress is thus empowered to
enforce reads: "No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws." U. S. Const.,
Amdt. 14, § 1. The Fourteenth Amendment directly empowers Congress
at the same time it expressly limits the States.u This is no
accident. It represents our Nation's consensus, achieved after hard
experience throughout our sorry history of race relations, that the
Federal Government must be the primary defender of racial
minorities against the States, some of which may be inclined to
oppress such minorities. A rule of "congruence" that ignores a
purposeful "incongruity" so fundamental to our system of government
is unacceptable.
In my judgment, the Court's novel doctrine of "congruence" is
seriously misguided. Congressional deliberations about a matter as
important as affirmative action should be accorded far greater
deference than those of a State or municipality.
IV
The Court's concept of
stare decisis treats some of the
language we have used in explaining our decisions as though it
11 We have read § 5 as a positive grant of authority to
Congress, not just to punish violations, but also to define and
expand the scope of the Equal Protection Clause.
Katzenbach
v.
Morgan, 384
U. S. 641 (1966). In
Katzenbach, this meant that
Congress under § 5 could require the States to allow
non-English-speaking citizens to vote, even if denying such
citizens a vote would not have been an independent violation of §
1.
Id., at 648-651. Congress, then, can expand the coverage
of § 1 by exercising its power under § 5 when it acts to foster
equality. Congress has done just that here; it has decided that
granting certain preferences to minorities best serves the goals of
equal protection.
256
were more important than our actual holdings. In my opinion that
treatment is incorrect.
This is the third time in the Court's entire history that it has
considered the constitutionality of a federal affirmative-action
program. On each of the two prior occasions, the first in 1980,
Fullilove v.
Klutznick, 448 U. S. 448, and the
second in 1990,
Metro Broadcasting, Inc. v.
FCC,
497 U. S. 547,
the Court upheld the program. Today the Court explicitly overrules
Metro Broadcasting (at least in part),
ante, at 227,
and undermines
Fullilove by recasting the standard on which
it rested and by calling even its holding into question,
ante, at 235. By way of explanation, JUSTICE O'CONNOR
advises the federal agencies and private parties that have made
countless decisions in reliance on those cases that "we do not
depart from the fabric of the law; we restore it."
Ante, at
234. A skeptical observer might ask whether this pronouncement is a
faithful application of the doctrine of
stare decisis.12 A
brief comment on each of the two ailing cases may provide the
answer.
In the Court's view, our decision in
Metro Broadcasting
was inconsistent with the rule announced in
Richmond v. J.
A. Croson Co., 488 U. S. 469 (1989).
Ante, at 225-226. But two decisive distinctions separate
those two cases. First,
Metro Broadcasting involved a
federal program, whereas
Croson involved a city ordinance.
Metro Broadcasting thus drew primary support from
Fullilove, which predated
Croson and which
Croson distinguished on the grounds of the federal-state
dichotomy that the majority today discredits. Although Members of
today's majority trumpeted the importance of that distinction in
Croson, they now reject it in the name of "congruence." It
is therefore
12 Our skeptical observer might also notice that JUSTICE
O'CONNOR'S explanation for departing from settled precedent is
joined only by JUSTICE KENNEDY.
Ante, at 204. Three Members
of the majority thus provide no explanation whatsoever for their
unwillingness to adhere to the doctrine of
stare
decisis.
257
quite wrong for the Court to suggest today that overruling
Metro Broadcasting merely restores the
status quo
ante, for the law at the time of that decision was entirely
open to the result the Court reached.
Today's decision is an
unjustified departure from settled law.
Second,
Metro Broadcasting's holding rested on more than
its application of "intermediate scrutiny." Indeed, I have always
believed that, labels notwithstanding, the Federal Communications
Commission (FCC) program we upheld in that case would have
satisfied any of our various standards in affirmative-action
cases-including the one the majority fashions today. What truly
distinguishes
Metro Broadcasting from our other
affirmative-action precedents is the distinctive goal of the
federal program in that case. Instead of merely seeking to remedy
past discrimination, the FCC program was intended to achieve future
benefits in the form of broadcast diversity. Reliance on race as a
legitimate means of achieving diversity was first endorsed by
Justice Powell in
Regents of Univ. of Gal. v.
Bakke,
438 U. S. 265,
311-319 (1978). Later, in
Wygant v.
Jackson Bd. of Ed.,
476 U. S. 267 (1986), I also argued that race is not always
irrelevant to governmental decisionmaking, see id., at 314-315
(STEVENS, J., dissenting); in response, JUSTICE O'CONNOR correctly
noted that, although the school board had relied on an interest in
providing black teachers to serve as role models for black
students, that interest "should not be confused with the very
different goal of promoting racial diversity among the faculty."
Id., at 288, n. She then added that, because the school
board had not relied on an interest in diversity, it was not
"necessary to discuss the magnitude of that interest or its
applicability in this case."
Ibid.
Thus, prior to
Metro Broadcasting, the interest in
diversity had been mentioned in a few opinions, but it is perfectly
clear that the Court had not yet decided whether that interest had
sufficient magnitude to justify a racial classification.
Metro
Broadcasting, of course, answered that question in the
258
affirmative. The majority today overrules
Metro
Broadcasting only insofar as it is "inconsistent with [the]
holding" that strict scrutiny applies to "benign" racial
classifications promulgated by the Federal Government.
Ante,
at 227. The proposition that fostering diversity may provide a
sufficient interest to justify such a program is
not
inconsistent with the Court's holding today-indeed, the question is
not remotely presented in this case-and I do not take the Court's
opinion to diminish that aspect of our decision in
Metro
Broadcasting.
The Court's suggestion that it may be necessary in the future to
overrule
Fullilove in order to restore the fabric of the
law,
ante, at 235, is even more disingenuous than its
treatment of
Metro Broadcasting. For the Court endorses the
"strict scrutiny" standard that Justice Powell applied in
Bakke, see
ante, at 224, and acknowledges that he
applied that standard in
Fullilove as well,
ante, at
218-219. Moreover, Chief Justice Burger also expressly concluded
that the program we considered in
Fullilove was valid under
any of the tests articulated in
Bakke, which of course
included Justice Powell's. 448 U. S., at 492. The Court thus adopts
a standard applied in
Fullilove at the same time it
questions that case's continued vitality and accuses it of
departing from prior law. I continue to believe that the
Fullilove case was incorrectly decided, see id., at 532-554
(STEVENS, J., dissenting), but neither my dissent nor that filed by
Justice Stewart, id., at 522-532, contained any suggestion that the
issue the Court was resolving had been decided before.13 As was
true
13 Of course, Justice Stewart believed that his view,
disapproving of racial classifications of any kind, was consistent
with this Court's precedents. See
ante, at 234-235, citing
448 U. S., at 523-526. But he did not claim that the question
whether the Federal Government could engage in raceconscious
affirmative action had been decided before
Fullilove. The
fact that a Justice dissents from an opinion means that he
disagrees with the result; it does not usually mean that he
believes the decision so departs from the fabric of the law that
its reasoning ought to be repudiated at the
259
of
Metro Broadcasting, the Court in
Fullilove
decided an important, novel, and difficult question. Providing a
different answer to a similar question today cannot fairly be
characterized as merely "restoring" previously settled law.
V
The Court's holding in
Fullilove surely governs the
result in this case. The Public Works Employment Act of 1977 (1977
Act), 91 Stat. 116, which this Court upheld in
Fullilove, is
different in several critical respects from the portions of the
Small Business Act (SBA), 72 Stat. 384, as amended, 15 U. S. C. §
631
et seq., and STURAA, 101 Stat. 132, challenged in this
case. Each of those differences makes the current program designed
to provide assistance to DBE's significantly less objectionable
than the 1977 categorical grant of $400 million in exchange for a
10% set-aside in public contracts to "a class of investors defined
solely by racial characteristics."
Fullilove, 448 U. S., at
532 (STEVENS, J., dissenting). In no meaningful respect is the
current scheme more objectionable than the 1977 Act. Thus, if the
1977 Act was constitutional, then so must be the SBA and STURAA.
Indeed, even if my dissenting views in
Fullilove had
prevailed, this program would be valid.
Unlike the 1977 Act, the present statutory scheme does not make
race the sole criterion of eligibility for participation in the
program. Race does give rise to a rebuttable presumption of social
disadvantage which, at least under STURAA,14 gives rise to a second
rebuttable presumption
next opportunity. Much less does a dissent bind or authorize a
later majority to reject a precedent with which it disagrees.
14 STURAA accords a rebuttable presumption of both social and
economic disadvantage to members of racial minority groups. 49 CFR
§ 23.62 (1994). In contrast, § Sea) of the SBA accords a
presumption only of social disadvantage, 13 CFR § 124.105(b)
(1995); the applicant has the burden of demonstrating economic
disadvantage, id., § 124.106. Finally, § Sed) of the SBA accords at
least a presumption of social disadvantage, but it is ambiguous as
to whether economic disadvantage is presumed or
260
of economic disadvantage. 49 CFR § 23.62 (1994). But a small
business may qualify as a DBE, by showing that it is both socially
and economically disadvantaged, even if it receives neither of
these presumptions. 13 CFR §§ 124.105(c), 124.106 (1995); 48 CFR §
19.703 (1994); 49 CFR pt. 23, subpt. D., Apps. A and C (1994).
Thus, the current preference is more inclusive than the 1977 Act
because it does not make race a necessary qualification.
More importantly, race is not a sufficient qualification.
Whereas a millionaire with a long history of financial
successes, who was a member of numerous social clubs and trade
associations, would have qualified for a preference under the 1977
Act merely because he was an Asian-American or an African-American,
see
Fullilove, 448 U. S., at 537-538, 540, 543-544, and n.
16, 546 (STEVENS, J., dissenting), neither the SBA nor STURAA
creates any such anomaly. The DBE program excludes members of
minority races who are not, in fact, socially or economically
disadvantaged.15 13 CFR § 124.106(a)(ii) (1995); 49 CFR § 23.69
(1994). The presumption of social disadvantage reflects the
unfortunate fact that irrational racial prejudice-along with its
lingering effectsstill survives.16 The presumption of economic
disadvantage
must be shown. See 15 U. S. C. § 637(d)(3) (1988 ed. and Supp.
V); 13 CFR § 124.601 (1995).
15 The Government apparently takes this exclusion seriously. See
Autek Systems Corp. v.
United States, 835 F. Supp. 13
(DC 1993) (upholding Small Business Administration decision that
minority business owner's personal income disqualified him from DBE
status under § 8(a) program), aff'd,
43 F.3d
712 (CADC 1994).
16 "The unhappy persistence of both the practice and the
lingering effects of racial discrimination against minority groups
in this country is an unfortunate reality, and government is not
disqualified from acting in response to it."
Ante, at
237.
"Our findings clearly state that groups such as black Americans,
Hispanic Americans, and Native Americans, have been and continue to
be discriminated against and that this discrimination has led to
the social disadvantagement of persons identified by society as
members of those groups." 124 Congo Rec. 34097 (1978)
261
embodies a recognition that success in the private sector of the
economy is often attributable, in part, to social skills and
relationships. Unlike the 1977 set-asides, the current preference
is designed to overcome the social and economic disadvantages that
are often associated with racial characteristics. If, in a
particular case, these disadvantages are not present, the
presumptions can be rebutted. 13 CFR §§ 124.601-124.610 (1995); 49
CFR § 23.69 (1994). The program is thus designed to allow race to
play a part in the decisional process only when there is a
meaningful basis for assuming its relevance. In this connection, I
think it is particularly significant that the current program
targets the negotiation of subcontracts between private firms. The
1977 Act applied entirely to the award of public contracts, an area
of the economy in which social relationships should be irrelevant
and in which proper supervision of government contracting officers
should preclude any discrimination against particular bidders on
account of their race. In this case, in contrast, the program seeks
to overcome barriers of prejudice between private
parties-specifically, between general contractors and
subcontractors. The SBA and STURAA embody Congress' recognition
that such barriers may actually handicap minority firms seeking
business as subcontractors from established leaders in the industry
that have a history of doing business with their golfing partners.
Indeed, minority subcontractors may face more obstacles than
direct, intentional racial prejudice: They may face particular
barriers simply because they are more likely to be new in the
business and less likely to know others in the business. Given such
difficulties, Congress could reasonably find that a minority
subcontractor is less likely to receive favors from the entrenched
businesspersons who award subcontracts only to people with whom-or
with whose friends-they have an existing relationship. This
program, then, if in part a remedy for past discrimination, is most
importantly a
262
forward-looking response to practical problems faced by minority
subcontractors.
The current program contains another forward-looking component
that the 1977 set-asides did not share. Section 8(a) of the SBA
provides for periodic review of the status of DBE's, 15 U. S. C. §§
637(a)(B)-(C) (1988 ed., Supp. V); 13 CFR § 124.602(a) (1995),17
and DBE status can be challenged by a competitor at any time under
any of the routes to certification. 13 CFR § 124.603 (1995); 49 CFR
§ 23.69 (1994). Such review prevents ineligible firms from taking
part in the program solely because of their minority ownership,
even when those firms were once disadvantaged but have since become
successful. The emphasis on review also indicates the
Administration's anticipation that after their presumed
disadvantages have been overcome, firms will "graduate" into a
status in which they will be able to compete for business,
including prime contracts, on an equal basis. 13 CFR § 124.208
(1995). As with other phases of the statutory policy of encouraging
the formation and growth of small business enterprises, this
program is intended to facilitate entry and increase competition in
the free market.
Significantly, the current program, unlike the 1977 setaside,
does not establish any requirement-numerical or otherwise-that a
general contractor must hire DBE subcontractors. The program we
upheld in
Fullilove required that 10% of the federal grant
for every federally funded project be expended on minority business
enterprises. In contrast, the current program contains no quota.
Although it provides monetary incentives to general contractors to
hire DBE subcontractors, it does not require them to hire
DBE's,
17The Department of Transportation strongly urges States to
institute periodic review of businesses certified as DBE's under
STURAA, 49 CFR pt. 23, subpt. D, App. A (1994), but it does not
mandate such review. Respondents point us to no provisions for
review of § Sed) certification, although such review may be
derivative for those businesses that receive § Sed) certification
as a result of § Sea) or STURAA certification.
263
and they do not lose their contracts if they fail to do so. The
importance of this incentive to general contractors (who always
seek to offer the lowest bid) should not be underestimated; but the
preference here is far less rigid, and thus more narrowly tailored,
than the 1977 Act. Cf.
Bakke, 438 U. S., at 319-320 (opinion
of Powell, J.) (distinguishing between numerical set-asides and
consideration of race as a factor).
Finally, the record shows a dramatic contrast between the sparse
deliberations that preceded the 1977 Act, see Fulli
love, 448
U. S., at 549-550 (STEVENS, J., dissenting), and the extensive
hearings conducted in several Congresses before the current program
was developed.18 However we might
18 Respondents point us to the following legislative
history:
H. R. 5612, To amend the Small Business Act to Extend the
current SBA 8(a) Pilot Program: Hearing on H. R. 5612 before the
Senate Select Committee on Small Business, 96th Cong., 2d Sess.
(1980); Small and Minority Business in the Decade of the 1980's
(Part 1): Hearings before the House Committee on Small Business,
97th Cong., 1st Sess. (1981); Minority Business and Its
Contribution to the U. S. Economy: Hearing before the Senate
Committee on Small Business, 97th Cong., 2d Sess. (1982); Federal
Contracting Opportunities for Minority and Women-Owned BusinessesAn
Examination of the 8(d) Subcontracting Program: Hearings before the
Senate Committee on Small Business, 98th Cong., 1st Sess. (1983);
Women Entrepreneurs-Their Success and Problems: Hearing before the
Senate Committee on Small Business, 98th Cong., 2d Sess. (1984);
State of Hispanic Small Business in America: Hearing before the
Subcommittee on SBA and SBIC Authority, Minority Enterprise, and
General Small Business Problems of the House Committee on Small
Business, 99th Cong., 1st Sess. (1985); Minority Enterprise and
General Small Business Problems:
Hearing before the Subcommittee on SBA and SBIC Authority,
Minority Enterprise, and General Small Business Problems of the
House Committee on Small Business, 99th Cong., 2d Sess. (1986);
Disadvantaged Business Set-Asides in Transportation Construction
Projects: Hearings before the Subcommittee on Procurement,
Innovation, and Minority Enterprise Development of the House
Committee on Small Business, 100th Cong., 2d Sess. (1988); Barriers
to Full Minority Participation in Federally Funded Highway
Construction Projects: Hearing before a Subcommittee of the House
Committee on Government Operations, lOOth Cong., 2d Sess.
(1988);
264
evaluate the benefits and costs-both fiscal and social-of this
or any other affirmative-action program, our obligation to give
deference to Congress' policy choices is much more demanding in
this case than it was in
Fullilove. If the 1977 program of
race-based set-asides satisfied the strict scrutiny dictated by
Justice Powell's vision of the Constitution-a vision the Court
expressly endorses today-it must follow as night follows the day
that the Court of Appeals' judgment upholding this more carefully
crafted program should be affirmed.
VI
My skeptical scrutiny of the Court's opinion leaves me in
dissent. The majority's concept of "consistency" ignores a
difference, fundamental to the idea of equal protection, between
oppression and assistance. The majority's concept of "congruence"
ignores a difference, fundamental to our constitutional system,
between the Federal Government and the States. And the majority's
concept of
stare decisis ignores the force of binding
precedent. I would affirm the judgment of the Court of Appeals.
JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, dissenting.
As this case worked its way through the federal courts prior to
the grant of certiorari that brought it here, petitioner Adarand
Constructors, Inc., was understood to have raised only one
significant claim: that before a federal agency may exceed the
goals adopted by Congress in implementing a race-based remedial
program, the Fifth and Fourteenth Amendments require the agency to
make specific findings of
Surety Bonds and Minority Contractors: Hearing before the
Subcommittee on Commerce, Consumer Protection, and Competitiveness
of the House Committee on Energy and Commerce, 100th Cong., 2d
Sess. (1988); Small Business Problems: Hearings before the House
Committee on Small Business, 100th Cong., 1st Sess. (1987). See
Brief for Respondents 9-10, n.9.
265
discrimination, as under
Richmond v. J.
A. Croson Co.,
488 U. S. 469 (1989), sufficient to justify surpassing the
congressional objective. See
16 F.3d
1537, 1544 (CAlO 1994) ("The gravamen of Adarand's argument is
that the CFLHD must make particularized findings of past
discrimination to justify its race-conscious SCC program under
Croson because the precise goals of the challenged SCC
program were fashioned and specified by an agency and not by
Congress");
Adarand Constructors, Inc. v.
Skinner,
790 F. Supp. 240, 242 (Colo. 1992) ("Plaintiff's motion for summary
judgment seeks a declaratory judgment and permanent injunction
against the DOT, the FHA and the CFLHD until specific findings of
discrimination are made by the defendants as allegedly required by
City of Richmond v. Croson"); cf. Complaint' 28, App. 20
(federal regulations violate the Fourteenth and Fifteenth
Amendments by requiring "the use of racial and gender preferences
in the award of federally financed highway construction contracts,
without any findings of past discrimination in the award of such
contracts").
Although the petition for certiorari added an antecedent
question challenging the use, under the Fifth and Fourteenth
Amendments, of any standard below strict scrutiny to judge the
constitutionality of the statutes under which respondents acted, I
would not have entertained that question in this case. The
statutory scheme must be treated as constitutional if
Fullilove v.
Klutznick, 448 U. S. 448 (1980), is
applied, and petitioner did not identify any of the factual
premises on which
Fullilove rested as having disappeared
since that case was decided.
As the Court's opinion explains in detail, the scheme in
question provides financial incentives to general contractors to
hire subcontractors who have been certified as disadvantaged
business enterprises (DBE's) on the basis of certain race-based
presumptions. See generally
ante, at 206-208. These statutes
(or the originals, of which the current ones are reenactments) have
previously been justified as provid-
266
ing remedies for the continuing effects of past discrimination,
see,
e. g., Fullilove, supra, at 465-466 (citing legislative
history describing SBA § 8(a) as remedial); S. Rep. No. 100-4, p.
11 (1987) (Committee Report stating that the DBE provision of
STURAA was "necessary to remedy the discrimination faced by
socially and economically disadvantaged persons"), and the
Government has so defended them in this case, Brief for Respondents
33. Since petitioner has not claimed the obsolescence of any
particular fact on which the
Fullilove Court upheld the
statute, no issue has come up to us that might be resolved in a way
that would render
Fullilove inapposite. See,
e. g.,
16 F. 3d, at 1544 ("Adarand has stipulated that section 502 of the
Small Business Act ... satisfies the evidentiary requirements of
Fullilove"); Memorandum of Points and Authorities in Support
of Plaintiff's Motion for Summary Judgment in No. 90-C-1413 (D.
Colo.), p. 12
(Fullilove is not applicable to the case at
bar because "[f]irst and foremost,
Fullilove stands for only
one proposition relevant here: the ability of the U. S. Congress,
under certain limited circumstances, to adopt a race-base[d]
remedy").
In these circumstances, I agree with JUSTICE STEVENS'S
conclusion that
stare decisis compels the application of
Fullilove. Although
Fullilove did not reflect
doctrinal consistency, its several opinions produced a result on
shared grounds that petitioner does not attack: that discrimination
in the construction industry had been subject to government
acquiescence, with effects that remain and that may be addressed by
some preferential treatment falling within the congressional power
under § 5 of the Fourteenth AmendmenU
Fullilove, 448 U. S.,
at 477-478 (opinion of Burger,
1 If the statutes are within the § 5 power, they are just as
enforceable when the National Government makes a construction
contract directly as when it funnels construction money through the
States. In any event, as JUSTICE STEVENS has noted, see
ante, at 247-248, n. 5,248-249, n. 6, it is
267
C. J.);
id., at 503 (Powell, J., concurring);
id.,
at 520-521 (Marshall, J., concurring in judgment). Once
Fullilove is applied, as JUSTICE STEVENS points out, it
follows that the statutes in question here (which are substantially
better tailored to the harm being remedied than the statute
endorsed in
Fullilove, see
ante, at 259-264 (STEVENS,
J., dissenting)) pass muster under Fifth Amendment due process and
Fourteenth Amendment equal protection.
The Court today, however, does not reach the application of
Fullilove to the facts of this case, and on remand it will
be incumbent on the Government and petitioner to address anew the
facts upon which statutes like these must be judged on the
Government's remedial theory of justification: facts about the
current effects of past discrimination, the necessity for a
preferential remedy, and the suitability of this particular
preferential scheme. Petitioner could, of course, have raised all
of these issues under the standard employed by the
Fullilove
plurality, and without now trying to read the current congressional
evidentiary record that may bear on resolving these issues I have
to recognize the possibility that proof of changed facts might have
rendered
Fullilove's conclusion obsolete as judged under the
Fullilove plurality's own standard. Be that as it may, it
seems fair to ask whether the statutes will meet a different fate
from what
Fullilove would have decreed. The answer is, quite
probably not, though of course there will be some interpretive
forks in the road before the significance of strict scrutiny for
congressional remedial statutes becomes entirely clear.
The result in
Fullilove was controlled by the plurality
for whom Chief Justice Burger spoke in announcing the judgment.
Although his opinion did not adopt any label for the standard it
applied, and although it was later seen as calling for less than
strict scrutiny,
Metro Broadcasting, Inc. v.
not clear whether the current challenge implicates only Fifth
Amendment due process or Fourteenth Amendment equal protection as
well.
268
FCC, 497 U.
S. 547, 564 (1990), none other than Justice Powell joined the
plurality opinion as comporting with his own view that a strict
scrutiny standard should be applied to all injurious race-based
classifications.
Fullilove, supra, at 495-496 (concurring
opinion) ("Although I would place greater emphasis than THE CHIEF
JUSTICE on the need to articulate judicial standards of review in
conventional terms, I view his opinion announcing the judgment as
substantially in accord with my views"). Chief Justice Burger's
noncategorical approach is probably best seen not as more lenient
than strict scrutiny but as reflecting his conviction that the
treble-tiered scrutiny structure merely embroidered on a single
standard of reasonableness whenever an equal protection challenge
required a balancing of justification against probable harm. See
Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 451 (1985)
(STEVENS, J., concurring, joined by Burger, C. J.). Indeed, the
Court's very recognition today that strict scrutiny can be
compatible with the survival of a classification so reviewed
demonstrates that our concepts of equal protection enjoy a greater
elasticity than the standard categories might suggest. See
ante, at 237 ("[W]e wish to dispel the notion that strict
scrutiny is 'strict in theory, but fatal in fact.'
Fullilove,
supra, at 519 (Marshall, J., concurring in judgment)"); see
also
Missouri v.
Jenkins, ante, at 112 (O'CONNOR, J.,
concurring) ("But it is not true that strict scrutiny is 'strict in
theory, but fatal in fact' ").
In assessing the degree to which today's holding portends a
departure from past practice, it is also worth noting that nothing
in today's opinion implies any view of Congress's § 5 power and the
deference due its exercise that differs from the views expressed by
the
Fullilove plurality. The Court simply notes the
observation in
Croson "that the Court's 'treatment of an
exercise of congressional power in
Fullilove cannot be
dispositive here,' because
Croson's facts did not implicate
Congress's broad power under § 5 of the Fourteenth Amendment,"
ante, at 222, and explains that there is dis-
269
agreement among today's majority about the extent of the § 5
power,
ante, at 230-231. There is therefore no reason to
treat the opinion as affecting one way or another the views of § 5
power, described as "broad,"
ante, at 269, "unique,"
Fullilove, 448 U. S., at 500 (Powell, J., concurring), and
"unlike [that of] any state or political subdivision,"
Croson,
488 U. S., at 490 (opinion of O'CONNOR, J.). See also
Jenkins, ante, at 113 (O'CONNOR, J., concurring) ("Congress
... enjoys '''discretion in determining whether and what
legislation is needed to secure the guarantees of the Fourteenth
Amendment,'"
Croson, 488 U. S., at 490 (quoting
Katzenbach v.
Morgan, 384 U. S., at 651)"). Thus,
today's decision should leave § 5 exactly where it is as the source
of an interest of the National Government sufficiently important to
satisfy the corresponding requirement of the strict scrutiny
test.
Finally, I should say that I do not understand that today's
decision will necessarily have any effect on the resolution of an
issue that was just as pertinent under
Fullilove's unlabeled
standard as it is under the standard of strict scrutiny now adopted
by the Court. The Court has long accepted the view that
constitutional authority to remedy past discrimination is not
limited to the power to forbid its continuation, but extends to
eliminating those effects that would otherwise persist and skew the
operation of public systems even in the absence of current intent
to practice any discrimination. See
Albemarle Paper Co. v.
Moody, 422 U.
S. 405, 418 (1975) ("Where racial discrimination is concerned,
'the [district] court has not merely the power but the duty to
render a decree which will so far as possible eliminate the
discriminatory effects of the past as well as bar like
discrimination in the future' "), quoting
Louisiana v.
United States, 380 U. S. 145, 154
(1965). This is so whether the remedial authority is exercised by a
court, see
ibid.; Green v.
School Bd. of New Kent
Cty., 391 U. S.
430, 437 (1968), the Congress, see
Fullilove, supra, at
502 (Powell, J., concurring), or some other legislature, see
Croson, supra, at 491-492 (opin-
270
ion of O'CONNOR, J.). Indeed, a majority of the Court today
reiterates that there are circumstances in which Government may,
consistently with the Constitution, adopt programs aimed at
remedying the effects of past invidious discrimination. See,
e. g.,
ante, at 228-229, 237 (opinion of O'CONNOR,
J.);
ante, at 243 (STEVENS, J., with whom GINSBURG, J.,
joins, dissenting);
post, at 273, 275-276 (GINSBURG, J.,
with whom BREYER, J., joins, dissenting);
Jenkins, ante, at
112 (O'CONNOR, J., concurring) (noting the critical difference
"between unconstitutional discrimination and narrowly tailored
remedial programs that legislatures may enact to further the
compelling governmental interest in redressing the effects of past
discrimination").
When the extirpation of lingering discriminatory effects is
thought to require a catchup mechanism, like the racially
preferential inducement under the statutes considered here, the
result may be that some members of the historically favored race
are hurt by that remedial mechanism, however innocent they may be
of any personal responsibility for any discriminatory conduct. When
this price is considered reasonable, it is in part because it is a
price to be paid only temporarily; if the justification for the
preference is eliminating the effects of a past practice, the
assumption is that the effects will themselves recede into the
past, becoming attenuated and finally disappearing. Thus, Justice
Powell wrote in his concurring opinion in
Fullilove that the
"temporary nature of this remedy ensures that a race-conscious
program will not last longer than the discriminatory effects it is
designed to eliminate." 448 U. S., at 513;
ante, at 237-238
(opinion of the Court).
Surely the transition from the
Fullilove plurality view
(in which Justice Powell joined) to today's strict scrutiny (which
will presumably be applied as Justice Powell employed it) does not
signal a change in the standard by which the burden of a remedial
racial preference is to be judged as reasonable or not at any given
time. If in the District Court Adarand
271
had chosen to press a challenge to the reasonableness of the
burden of these statutes,2 more than a decade after
Fullilove had examined such a burden, I doubt that the claim
would have fared any differently from the way it will now be
treated on remand from this Court.
JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
dissenting.
For the reasons stated by JUSTICE SOUTER, and in view of the
attention the political branches are currently giving the matter of
affirmative action, I see no compelling cause for the intervention
the Court has made in this case. I further agree with JUSTICE
STEVENS that, in this area, large deference is owed by the
Judiciary to "Congress' institutional competence and constitutional
authority to overcome historic racial subjugation."
Ante, at
253 (STEVENS, J., dissenting); see
ante, at 254-255.1 I
write separately to underscore not the differences the several
opinions in this case display, but the considerable field of
agreement-the common understandings and concerns-revealed in
opinions that together speak for a majority of the Court.
2 I say "press a challenge" because petitioner's Memorandum in
Support of Summary Judgment did include an argument challenging the
reasonableness of the duration of the statutory scheme; but the
durational claim was not, so far as I am aware, stated elsewhere,
and, in any event, was not the gravamen of the complaint.
IOn congressional authority to enforce the equal protection
principle, see,
e. g.,
Heart of Atlanta Motel, Inc.
v.
United States, 379 U. S. 241,286 (1964)
(Douglas, J., concurring) (recognizing Congress' authority, under §
5 of the Fourteenth Amendment, to "pu[t] an end to all
obstructionist strategies and allo[w] every person-whatever his
race, creed, or color-to patronize all places of public
accommodation without discrimination whether he travels interstate
or intrastate."); id., at 291, 293 (Goldberg, J., concurring)
("primary purpose of the Civil Rights Act of 1964 ... is the
vindication of human dignity"; "Congress clearly had authority
under both § 5 of the Fourteenth Amendment and the Commerce Clause"
to enact the law); G. Gunther, Constitutional Law 147-151 (12th ed.
1991).
272
I
The statutes and regulations at issue, as the Court indicates,
were adopted by the political branches in response to an
"unfortunate reality": "[t]he unhappy persistence of both the
practice and the lingering effects of racial discrimination against
minority groups in this country."
Ante, at 237 (lead
opinion). The United States suffers from those lingering effects
because, for most of our Nation's history, the idea that "we are
just one race,"
ante, at 239 (SCALIA, J., concurring in part
and concurring in judgment), was not embraced. For generations, our
lawmakers and judges were unprepared to say that there is in this
land no superior race, no race inferior to any other. In
Plessy v.
Ferguson, 163 U. S. 537 (1896), not
only did this Court endorse the oppressive practice of race
segregation, but even Justice Harlan, the advocate of a
"color-blind" Constitution, stated:
"The white race deems itself to be the dominant race in this
country. And so it is, in prestige, in achievements, in education,
in wealth and in power. So, I doubt not, it will continue to be for
all time, if it remains true to its great heritage and holds fast
to the principles of constitutional liberty." Id., at 559
(dissenting opinion).
Not until
Loving v.
Virginia, 388 U. S. 1 (1967), which
held unconstitutional Virginia's ban on interracial marriages,
could one say with security that the Constitution and this Court
would abide no measure "designed to maintain White Supremacy."
Id., at 11.2
2 The Court, in 1955 and 1956, refused to rule on the
constitutionality of antimiscegenation laws; it twice declined to
accept appeals from the decree on which the Virginia Supreme Court
of Appeals relied in
Loving. See Naim v. Naim, 197 Va. 80,
87 S. E. 2d 749, vacated and remanded, 350 U. S. 891 (1955),
reinstated and aff'd, 197 Va. 734, 90 S. E. 2d 849, appeal dism'd,
350 U. S. 985 (1956). Naim expressed the state court's view of the
legislative purpose served by the Virginia law: "to preserve the
racial integrity of [Virginia's] citizens"; to prevent "the
corruption of blood," "a
273
The divisions in this difficult case should not obscure the
Court's recognition of the persistence of racial inequality and a
majority's acknowledgment of Congress' authority to act
affirmatively, not only to end discrimination, but also to
counteract discrimination's lingering effects.
Ante, at 237
(lead opinion); see also
ante, at 269-270 (SOUTER, J.,
dissenting). Those effects, reflective of a system of racial caste
only recently ended, are evident in our workplaces, markets, and
neighborhoods. Job applicants with identical resumes,
qualifications, and interview styles still experience different
receptions, depending on their race.3 White and AfricanAmerican
consumers still encounter different deals.4 People of color looking
for housing still face discriminatory treatment by landlords, real
estate agents, and mortgage lenders.5
mongrel breed of citizens," and "the obliteration of racial
pride." 197 Va., at 90, 87 S. E. 2d, at 756.
3 See,
e. g., H. Cross, G. Kennedy, J. Mell, & W.
Zimmermann, Employer Hiring Practices: Differential Treatment of
Hispanic and Anglo Job Seekers 42 (Urban Institute Report
90-4,1990) (e. g., Anglo applicants sent out by investigators
received 52% more job offers than matched Hispanics); M. Turner, M.
Fix, & R. Struyk, Opportunities Denied, Opportunities
Diminished: Racial Discrimination in Hiring xi (Urban Institute
Report 91-9, 1991) ("In one out of five audits, the white applicant
was able to advance farther through the hiring process than his
black counterpart. In one out of eight audits, the white was
offered a job although his equally qualified black partner was not.
In contrast, black auditors advanced farther than their white
counterparts only 7 percent of the time, and received job offers
while their white partners did not in 5 percent of the
audits.").
4 See,
e. g., Ayres, Fair Driving: Gender and Race
Discrimination in Retail Car Negotiations, 104 Harv. L. Rev. 817,
821-822, 819, 828 (1991) ("blacks and women simply cannot buy the
same car for the same price as can white men using identical
bargaining strategies"; the final offers given white female testers
reflected 40 percent higher markups than those given white male
testers; final offer markups for black male testers were twice as
high, and for black female testers three times as high as for white
male testers).
5 See,
e. g., A Common Destiny: Blacks and American
Society 50 (G.
Jaynes & R. Williams eds. 1989) ("[I]n many metropolitan
areas onequarter to one-half of all [housing] inquiries by blacks
are met by clearly
274
Minority entrepreneurs sometimes fail to gain contracts though
they are the low bidders, and they are sometimes refused work even
after winning contracts.6 Bias both conscious and unconscious,
reflecting traditional and unexamined habits of thought,7 keeps up
barriers that must come down if equal opportunity and
nondiscrimination are ever genuinely to become this country's law
and practice.
Given this history and its practical consequences, Congress
surely can conclude that a carefully designed affirmative action
program may help to realize, finally, the "equal protection of the
laws" the Fourteenth Amendment has promised since 1868.8
discriminatory responses."); M. Turner, R. Struyk, & J.
Yinger, U. S. Dept. of Housing and Urban Development, Housing
Discrimination Study: Synthesis i-vii (Sept. 1991) (1989 audit
study of housing searches in 25 metropolitan areas; over half of
Mrican-American and Hispanic testers seeking to rent or buy
experienced some form of unfavorable treatment compared to paired
white testers); Leahy, Are Racial Factors Important for the
Allocation of Mortgage Money?, 44 Am. J. Econ. & Soc. 185, 193
(1985) (controlling for socioeconomic factors, and concluding that
"even when neighborhoods appear to be similar on every major
mortgage-lending criterion except race, mortgage-lending outcomes
are still unequal").
6 See, e. g., Associated General Contractors v. Coalition for
Economic Equity,
950 F.2d
1401, 1415 (CA9 1991) (detailing examples in San
Francisco).
7 Cf.
Wygant v.
Jackson Bd. of Ed., 476 U. S. 267, 318 (1986)
(STEVENS, J., dissenting);
Califano v.
Goldfarb,
430 U. S. 199,
222-223 (1977) (STEVENS, J., concurring in judgment).
8 On the differences between laws designed to benefit a
historically disfavored group and laws designed to burden such a
group, see,
e. g., Carter, When Victims Happen To Be Black,
97 Yale L. J. 420, 433-434 (1988) ("[W]hatever the source of
racism, to count it the same as racialism, to say that two
centuries of struggle for the most basic of civil rights have been
mostly about freedom from racial categorization rather than freedom
from racial oppression, is to trivialize the lives and deaths of
those who have suffered under racism. To pretend ... that the issue
presented in
Bakke was the same as the issue in
Brown
is to pretend that history never happened and that the present
doesn't exist.").
275
II
The lead opinion uses one term, "strict scrutiny," to describe
the standard of judicial review for all governmental
classifications by race.
Ante, at 235-237. But that
opinion's elaboration strongly suggests that the strict standard
announced is indeed "fatal" for classifications burdening groups
that have suffered discrimination in our society. That seems to me,
and, I believe, to the Court, the enduring lesson one should draw
from
Korematsu v.
United States, 323 U. S. 214 (1944); for
in that case, scrutiny the Court described as "most rigid," id., at
216, nonetheless yielded a pass for an odious, gravely injurious
racial classification. See
ante, at 214-215 (lead opinion).
A
Korematsu-type classification, as I read the opinions in
this case, will never again survive scrutiny: Such a
classification, history and precedent instruct, properly ranks as
prohibited.
For a classification made to hasten the day when "we are just
one race,"
ante, at 239 (SCALIA, J., concurring in part and
concurring in judgment), however, the lead opinion has dispelled
the notion that "strict scrutiny" is " 'fatal in fact.'"
Ante, at 237 (quoting
Fullilove v.
Klutznick,
448 U. S. 448,
519 (1980) (Marshall, J., concurring in judgment)). Properly, a
majority of the Court calls for review that is searching, in order
to ferret out classifications in reality malign, but masquerading
as benign. See
ante, at 228-229 (lead opinion). The Court's
once lax review of sex-based classifications demonstrates the need
for such suspicion. See,
e. g.,
Hoyt v.
Florida, 368 U.
S. 57, 60 (1961) (upholding women's "privilege" of automatic
exemption from jury service);
Goesaert v.
Cleary,
335 U. S. 464
(1948) (upholding Michigan law barring women from employment as
bartenders); see also Johnston & Knapp, Sex Discrimination by
Law: A Study in Judicial Perspective, 46 N. Y. U. L. Rev. 675
(1971). Today's decision thus usefully reiterates that the purpose
of strict scrutiny "is precisely to distinguish legitimate from
276
illegitimate uses of race in governmental decisionmaking,"
ante, at 228 (lead opinion), "to 'differentiate between'
permissible and impermissible governmental use of race,"
ibid., to distinguish" 'between a "No Trespassing" sign and
a welcome mat,'"
ante, at 229.
Close review also is in order for this further reason. As
JUSTICE SOUTER points out,
ante, at 270 (dissenting
opinion), and as this very case shows, some members of the
historically favored race can be hurt by catchup mechanisms
designed to cope with the lingering effects of entrenched racial
subjugation. Court review can ensure that preferences are not so
large as to trammel unduly upon the opportunities of others or
interfere too harshly with legitimate expectations of persons in
once-preferred groups. See,
e. g., Bridgeport Guardians,
Inc. v.
Bridgeport Civil Service Comm'n, 482 F. 2d 1333,
1341 (CA2 1973).
***
While I would not disturb the programs challenged in this case,
and would leave their improvement to the political branches, I see
today's decision as one that allows our precedent to evolve, still
to be informed by and responsive to changing conditions.
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