Adarand Constructors, Inc. v. Pena: Is Strict Scrutiny Fatal in Fact for Governmental Affirmative Action Programs?

I.  Introduction

Race relations in the United States has continued to be one of the most hotly contested political and social issues facing our country to this day.⁽¹⁾ The most significant bodies of law affecting contemporary race relations in our country have been the laws that created and enforced affirmative action programs.⁽²⁾ Until 1995, however, the Supreme Court of the United States responded to Constitutional challenges to affirmative action programs in an incoherent way, failing to provide a single standard of review for the "constitutional status of benign race-conscious decisionmaking."⁽³⁾ The Court finally addressed the issue of its conflicting standards (used in previous cases) for judicial review of benign⁽⁴⁾ governmental race-based measures in Adarand Constructors, Inc. v. Pena.⁽⁵⁾ In this opinion, written by Justice O'Connor, the Court finally decided that the single standard of review for all racial classifications imposed by either local, state, or the federal government must be that of strict scrutiny.⁽⁶⁾ Justice O'Connor stated that this means "such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests."⁽⁷⁾ Unfortunately for the proponents (and beneficiaries) of affirmative action programs, the label of strict scrutiny review by the United States Supreme Court has generally been understood to signal the death knell of any governmental action which has been reviewed by courts under that standard.⁽⁸⁾ This Comment analyzes the Court's decision to review all racial classifications under the strict scrutiny standard, and the impact that this standard will have on the viability of affirmative action programs in this country. Part II focuses on the Court's interpretation of the Constitution's guarantee of equal protection, and how the case law has developed regarding racial classifications in the United States.⁽⁹⁾ Part III analyzes the Adarand decision, its reasoning and its holding, and how each of the Justices justified either the opinion, concurrence, or dissent.⁽¹⁰⁾ In Part IV, the majority's reasoning is compared to that of the dissent (and concurrences), as well as to that of various commentators who either oppose or support the continued existence of affirmative action programs in the United States.⁽¹¹⁾ Part V addresses the issue of which affirmative action programs will satisfy the strict scrutiny standard, and whether affirmative action as we now know it will survive the Adarand decision at all.⁽¹²⁾

II.  Background

Throughout the 1940s the United States Supreme Court regularly took the view that the Fifth Amendment,⁽¹³⁾ unlike the Fourteenth Amendment,⁽¹⁴⁾ contained no equal protection clause, and therefore it provided no guarantee to prevent Congress from enacting discriminatory legislation.⁽¹⁵⁾ The Court first faced a Fifth Amendment equal protection challenge to federal classifications based on race in Hirabayashi v. United States.⁽¹⁶⁾ In Hirabayashi, the petitioner, an American citizen of Japanese descent, was convicted of violating a Congressional curfew order that only applied to people of Japanese ancestry on the West Coast during World War II.⁽¹⁷⁾ Although the Court noted 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,'" it upheld the curfew as constitutional based upon the rational need to maintain a national defense.⁽¹⁸⁾

Less than two years later, in Korematsu v. United States,⁽¹⁹⁾ the Court once again approved discriminatory wartime measures aimed at people of Japanese ancestry.⁽²⁰⁾ In Korematsu, the petitioner was convicted of remaining within a military zone in California, which had been declared off limits to people of Japanese ancestry during World War II.⁽²¹⁾ Korematsu's conviction was based upon the same 1942 Congressional Act, and the same military and executive orders that had been upheld as constitutional in Hirabayashi, for the purposes of addressing the dangers of espionage and sabotage.⁽²²⁾ Although the Court did not address the question of whether the federal government's obligation to provide equal protection was different from that of the States (as expressed in Hirabayashi and Detroit Bank),⁽²³⁾ it did note 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."⁽²⁴⁾ The Court, however, stated that not all such laws were necessarily unconstitutional, and that despite such rigid scrutiny, this law in particular was justified by pressing public necessity.⁽²⁵⁾

It was not until 1954, in Bolling v. Sharpe,⁽²⁶⁾ that the Court first explicitly addressed the issue of whether there was "any difference between the obligations of the Federal Government and the States to avoid racial classifications."⁽²⁷⁾ In this case the petitioners, a group of African-American minors, challenged the validity of segregation within the District of Columbia public school system.⁽²⁸⁾ The petitioners alleged they were denied admission to the public schools solely because of their race, and that this deprived them of their right to due process of law under the Fifth Amendment.⁽²⁹⁾ Earlier on the same day that the Court heard Bolling, it decided in Brown v. Board of Education⁽³⁰⁾ that the Fourteenth Amendment Equal Protection Clause prohibited the states from maintaining public schools that were racially segregated.⁽³¹⁾ The Court noted that the challenge in Bolling differed from that in Brown because only the Fifth Amendment was applicable to the District of Columbia school system, and it did not contain an Equal Protection Clause like that found in the Fourteenth Amendment, which was applicable only to the states.⁽³²⁾ The Court also noted that due process was not as an explicit a safeguard against unfairness as equal protection, but recognized that sometimes "discrimination may be so unjustifiable as to be violative of due process."⁽³³⁾ The Court reasoned that the ideals behind the two clauses were not mutually exclusive,⁽³⁴⁾ and that considering that it had found the Constitution to prohibit the states from maintaining segregated schools in Brown, "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government."⁽³⁵⁾

The Court's reasoning behind its decision in Bolling (to hold the Federal Government to the same standards as the states when imposing laws based on racial classifications) was followed by later Supreme Court cases dealing with race-based laws.⁽³⁶⁾ In McLaughlin v. Florida,⁽³⁷⁾ the Court invalidated a race-based state law involving federal action cases, suggesting that "the Court understood the standards for federal and state racial classifications to be the same."⁽³⁸⁾ Indeed, after McLaughlin, the Supreme Court continued to treat the Fifth and Fourteenth Amendment guarantees of equal protection as indistinguishable.⁽³⁹⁾ Eventually, in 1975, the Court explicitly stated in Weinberger v. Wiesenfeld,⁽⁴⁰⁾ that the Court's approach to Fifth Amendment equal protection claims was "precisely the same as to equal protection claims under the Fourteenth Amendment."⁽⁴¹⁾

In 1978, in Regents of the University of California v. Bakke,⁽⁴²⁾ the Court addressed the issue of whether strict scrutiny would be applied to race-based governmental actions designed to benefit racial groups that had been historically discriminated against in the United States.⁽⁴³⁾ This case involved a white male (Bakke) who challenged the legality of a state medical school's admissions policy that called for reserving sixteen of the 100 positions in the entering class for disadvantaged minorities.⁽⁴⁴⁾ Justice Powell, writing for the majority with respect to Part I, concluded that "[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination,"⁽⁴⁵⁾ essentially adopting the strict scrutiny standard.⁽⁴⁶⁾ The Court then held that the special admissions program (of quotas) was invalid under the Fourteenth Amendment,⁽⁴⁷⁾ but left open the door for the admissions committee to continue to take into account the applicant's race when determining who would be admitted.⁽⁴⁸⁾

In 1980, the Court once again faced a constitutional challenge to race-based remedial measures in Fullilove v. Klutznick.⁽⁴⁹⁾ This case involved a "minority business enterprise" provision of the Public Works Employment Act of 1977,⁽⁵⁰⁾ which required that "absent an administrative waiver, at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members."⁽⁵¹⁾ The plurality in this case upheld the provision as not violating the constitution,⁽⁵²⁾ but specifically stated that the opinion did not (either expressly or implicitly) adopt the standard of review from Bakke.⁽⁵³⁾ Justice Burger, writing for the plurality, noted that "[a]ny preference based on rac[e] must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees."⁽⁵⁴⁾ The Court, in upholding the program, used a two-part test that asks, "whether the objectives of this legislation are within the power of Congress," and "whether the limited use of racial and ethnic criteria, in the context presented, is a constitutionally permissible means for achieving the congressional objectives and does not violate the equal protection component of the Due Process Clause of the Fifth Amendment."⁽⁵⁵⁾ Justice Powell in his concurring opinion noted that this two-part test was essentially the same strict scrutiny test that was applied in his Bakke opinion.⁽⁵⁶⁾

In 1986, eight years after the Fullilove decision, the Court once again faced a constitutional challenge to race-based remedial measures in Wygant v. Jackson Board of Education.⁽⁵⁷⁾ In that case, nonminority school instructors challenged a collective-bargaining agreement provision that gave preferential protection to some minority school teachers against layoffs as being a violation of the Equal Protection Clause.⁽⁵⁸⁾ Justice Powell, writing for the plurality, relied heavily on the Court's prior decision in Fullilove, noting that the "Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination."⁽⁵⁹⁾ The plurality held that the preferential provision for minorities in the agreement violated the Equal Protection Clause under the strict scrutiny standard of review.⁽⁶⁰⁾ The plurality reasoned that past societal discrimination, without particularized findings, was "too amorphous a basis for imposing a racially classified remedy."⁽⁶¹⁾ Once again, however, the Court's inability to reach a majority decision in this case, as in Bakke and Fullilove, failed to resolve the question of which analysis should be applied to governmental actions that are race-based, leading to further confusion among the lower federal courts.⁽⁶²⁾

Finally, the Court seemed to resolve the issue of the proper standard of review for Equal Protection Clause challenges to state and municipal governmental racial classifications in the 1989 case of Richmond v. J.A. Croson Co.⁽⁶³⁾ This case involved a Richmond, Virginia City Council plan that would require prime contractors (who were awarded city construction contracts) to subcontract at least thirty percent of the fiscal amount of the contract to at least one or more "Minority Business Enterprises."⁽⁶⁴⁾ The Court, in applying the strict scrutiny test noted that the program was not narrowly tailored to fit a governmental compelling interest.⁽⁶⁵⁾ The Court specifically found that the city failed to present any evidence that identified discrimination within the construction industry of Richmond.⁽⁶⁶⁾ In a plurality opinion, with respect to Part III-A,⁽⁶⁷⁾ Justice O'Connor reaffirmed the view of "the plurality in Wygant that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefitted by a particular classification."⁽⁶⁸⁾ With this decision, the Court finally agreed that all race-based action by local and state governments required strict scrutiny review in accordance with the Fourteenth Amendment.⁽⁶⁹⁾ However, Croson's facts did not give the Court the opportunity to determine which standard of review was required by the Fifth Amendment when the federal government imposed race-based measures.⁽⁷⁰⁾ Therefore, many lower federal courts continued to express uncertainty when determining which standard of review to use when reviewing federal racial classifications.⁽⁷¹⁾

In 1990, just a year after the Croson decision, the Court finally addressed the question of what the proper standard of review is for federal racial classifications in Metro Broadcasting, Inc. v. FCC.⁽⁷²⁾ This case involved a challenge to Federal Communications Commission (FCC) minority preference policies as violating equal protection under the Fifth Amendment.⁽⁷³⁾ The policies challenged included a program that gave minorities an advantage in proceedings for new licenses,⁽⁷⁴⁾ and a "distress sale" program that permitted a small number of existing radio and television stations to be transferred only to minority-controlled firms.⁽⁷⁵⁾ In what was later described by Justice O'Connor as a "surprising turn,"⁽⁷⁶⁾ "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."⁽⁷⁷⁾ The Court applied the lesser standard of intermediate scrutiny, and held that

benign race-conscious measures mandated by Congress--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.⁽⁷⁸⁾

The Court upheld the FCC policies, finding that they served the important governmental objective of promoting broadcast diversity, and that the policies were substantially related to achieving that objective.⁽⁷⁹⁾ The Court noted that it was of "overriding significance" that not only were the FCC programs approved by Congress, but that they were in fact mandated by Congress.⁽⁸⁰⁾ The Court justified the split between Croson's (state and local) strict scrutiny standard and Metro Broadcasting's (federal) intermediate standard by stating "that deference [to congressional mandates] was appropriate in light of Congress' institutional competence as the National Legislature."⁽⁸¹⁾ The decisions in Croson and Metro Broadcasting indicated an uncertainty among the Justices with regard to the constitutionality of affirmative action programs⁽⁸²⁾ that would not be resolved until the 1995 decision in Adarand Constructors, Inc. v. Pena.⁽⁸³⁾

III.  Adarand Constructors, Inc. v. Pena

A.  Facts and Procedure of the Case

In Adarand, a subcontractor, Adarand Constructors, Inc., challenged the constitutionality of a federal program that helped to provide disadvantaged business enterprises with highway contracts.⁽⁸⁴⁾ In 1989, the Central Federal Lands Highway Division (CFLHD), a division of the United States Department of Transportation (DOT), awarded the Mountain Gravel & Construction Company the prime contract for a highway construction project in Colorado.⁽⁸⁵⁾ The terms of the prime contract provided that "Mountain Gravel would receive additional compensation if it hired subcontractors certified as small businesses controlled by `socially and economically disadvantaged individuals.'"⁽⁸⁶⁾ The low bid was submitted by Adarand Constructors, Inc., a Colorado highway construction company that specialized in guardrail construction.⁽⁸⁷⁾ Gonzales Construction Company, a certified business controlled by socially and economically disadvantaged individuals, also submitted a bid.⁽⁸⁸⁾ Despite the fact that Adarand's bid was substantially lower, Mountain Gravel awarded the subcontractor contract to Gonzales, based upon its special certification.⁽⁸⁹⁾

Federal law requires that most federal agency contracts contain a similar subcontracting clause to the one at issue here.⁽⁹⁰⁾ Federal law also requires the subcontracting "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.'"⁽⁹¹⁾ Adarand challenged the presumption set forth in the statute by claiming that it "discriminates on the basis of race in violation of the Federal Government's Fifth Amendment obligation not to deny anyone equal protection of the laws."⁽⁹²⁾

The purpose of the Small Business Act (SBA) is to allow small businesses (and small businesses controlled by socially and economically disadvantaged individuals) to "`have the maximum practicable opportunity to participate in the performance of contracts let by any Federal Agency.'"<sup>(93)</sup> Socially disadvantaged individuals are defined in the Act "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.'"⁽⁹⁴⁾ "`[E]conomically disadvantaged individuals" are defined "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.'"⁽⁹⁵⁾ The Act establishes governmental goals of "`not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year'" to go to businesses with the special certification.⁽⁹⁶⁾ The Act also requires Federal agencies "to set agency-specific goals" to increase participation "by businesses controlled by socially and economically disadvantaged individuals."⁽⁹⁷⁾

The Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA) is a Department of Transportation appropriations measure that gave rise to the contract dispute in this case.⁽⁹⁸⁾ "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.'"⁽⁹⁹⁾ STURAA also adopted the same definition of "`socially and economically disadvantaged individual[s]'" as that used by the SBA.⁽¹⁰⁰⁾ Under STURAA, the Secretary of Transportation is given the directive to establish minimum criteria for state governments to use when determining whether a business is eligible for a special certification.⁽¹⁰¹⁾ These minimum requirements state that both social and economic disadvantage should be presumed if the applicant belongs to specific racial groups.⁽¹⁰²⁾ STURAA, just like the SBA, allows third parties to come forward with evidence to rebut its individual findings of disadvantage for a particular business.⁽¹⁰³⁾

The prime contract in question here contained a clause for Disadvantaged Business Enterprises (DBE) that provided that "`[m]onetary compensation is offered for awarding subcontracts to small business concerns owned and controlled by socially and economically disadvantaged individuals.'"<sup>(104)</sup> The contract also provided that in order to be classified as a DBE, a small business must be certified "`by the U.S. Small Business Administration or by any State Highway Agency.'"⁽¹⁰⁵⁾ In order to receive payment under the provision, the contractor (Mountain Gravel) had to provide the engineer with a certified copy of the subcontract, and a evidence of the DBE certification.⁽¹⁰⁶⁾

Adarand filed suit against various federal officials in the United States District Court after losing the guardrail subcontract to Gonzales, alleging that the race-based presumptions in the subcontractor compensation clause was a violation of its right to equal protection.⁽¹⁰⁷⁾ Adarand also specifically asked for declaratory and injunctive relief from any use in the future of subcontractor compensation clauses.⁽¹⁰⁸⁾ The District Court granted summary judgment for the Government.⁽¹⁰⁹⁾ That decision was then affirmed by the Tenth Circuit Court of Appeals,⁽¹¹⁰⁾ which applied the intermediate scrutiny standard used in Fullilove and Metro Broadcasting when it upheld the use of subcontractor compensation clauses.⁽¹¹¹⁾ The Supreme Court of the United States then granted certiorari.⁽¹¹²⁾

B.  Holding and Reasoning of the Majority

Before addressing the merits of Adarand's claim, the Court first considered whether Adarand had the standing necessary to seek forward-looking relief.⁽¹¹³⁾ The Court noted that "[i]f Adarand is to maintain its claim for forward-looking relief, [it must] 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.'"<sup>(114)</sup> The Court noted that the particularized injury here need only be that some "`discriminatory classification prevent [] the plaintiff from competing on an equal footing.'"⁽¹¹⁵⁾ The Court then determined that the injury was adequately imminent because Adarand bid on every guardrail project in Colorado, and it was likely that it would bid on another CFLHD contract with a subcontractor compensation clause, and have to compete against another DBE.⁽¹¹⁶⁾ The Court, therefore, concluded that Adarand did have standing to bring the suit.⁽¹¹⁷⁾

Justice O'Connor, writing for the majority,⁽¹¹⁸⁾ first went through a lengthy analysis of the Supreme Court case law that addressed the issue of affirmative action and the constitutionality of race-based laws in the United States.⁽¹¹⁹⁾ This analysis addressed the war time race-based laws that were challenged as unconstitutional in both Hirabayashi and Korematsu.⁽¹²⁰⁾ The majority then briefly discussed Bolling and McLaughlin, indicating that these cases represented the Court's understanding that the standards for reviewing state and federal racial classifications were the same.⁽¹²¹⁾ Justice O'Connor then discussed cases that had challenged remedial race-based laws designed to benefit minorities including Bakke, Fullilove, and Wygant,⁽¹²²⁾ all of which failed to produce a majority opinion. O'Connor noted that "[t]he Court's failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the proper analysis for remedial race-based governmental action."⁽¹²³⁾

The majority next reviewed its opinion in Croson, in which it decided to apply a single standard of strict scrutiny review for racial classifications.⁽¹²⁴⁾ In Croson, a majority of the Court "finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments."⁽¹²⁵⁾ Here the majority was also quick to note, however, that Croson's facts did not provide the opportunity for the Court to decide which standard of review was required by the Fifth Amendment for actions taken by the federal government.⁽¹²⁶⁾

The majority noted that although the line of cases through Croson had left lingering uncertainties as to the proper standard of review for race-based measures, the cases "had established three general propositions with respect to governmental racial classifications."⁽¹²⁷⁾ These three propositions were skepticism, consistency, and congruence.⁽¹²⁸⁾ The majority first noted that skepticism necessitated a "`"most searching examination"'" when dealing with preferences based upon racial or ethnic criteria.⁽¹²⁹⁾ Justice O'Connor quoted the Croson majority for the second proposition of consistency that required "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefitted by a particular classification."⁽¹³⁰⁾ The third proposition of congruence requires that Fifth Amendment Equal Protection analysis be identical to that of the Fourteenth Amendment.⁽¹³¹⁾ The majority noted that "[t]aken 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."⁽¹³²⁾

The majority then addressed the surprising turn taken by the Supreme Court when it abandoned the strict scrutiny standard used in Croson and turned to an intermediate scrutiny standard when deciding Metro Broadcasting⁽¹³³⁾ and its challenged race-based policies.⁽¹³⁴⁾ Justice O'Connor stated that Metro Broadcasting's adoption of the intermediate scrutiny standard of review for "`benign'" racial classifications (that were congressionally mandated) departed from the reasoning of the case precedents up to that point in two very significant ways.⁽¹³⁵⁾

First, the Court in Metro Broadcasting "turned its back on Croson's explanation of why strict scrutiny of all governmental racial classifications is essential."⁽¹³⁶⁾ This primary explanation was that without the most "`searching judicial inquiry'" (that is strict scrutiny), it is simply too difficult to determine when racial classifications are in fact benign, and not based upon illegitimate assumptions.⁽¹³⁷⁾

Justice O'Connor also explained that the Metro Broadcasting decision significantly departed from the reasoning used in the equal protection cases that had come before it, because it did not provide for congruence between state and federal classifications.⁽¹³⁸⁾ This failure to adhere to the first proposition of congruence in the previous case law, also served to undermine the other propositions of skepticism and consistency.⁽¹³⁹⁾ These three propositions, which Metro Broadcasting failed to adhere to, all stand for the principle that the Constitution's Fifth and Fourteenth Amendments are not meant to protect groups, but to protect persons.⁽¹⁴⁰⁾ Therefore, Justice O'Connor reasoned that "all governmental action based on race . . . should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed."⁽¹⁴¹⁾ Therefore, the Court in this case held that strict scrutiny must be used by any reviewing court when analyzing any and all racial classifications, whether they are imposed by federal, state, or local governmental actors.⁽¹⁴²⁾ Justice O'Connor explicitly stated that Metro Broadcasting was overruled to the extent that it is inconsistent with this holding, thus overruling the use of intermediate scrutiny for race-based measures.⁽¹⁴³⁾

Justice O'Connor's opinion further addressed the reasoning of the dissenters, most specifically that of Justice Stevens.⁽¹⁴⁴⁾ Although Justice Stevens agreed with the majority that a skeptical view should be taken of all governmental racial classifications,⁽¹⁴⁵⁾ he also believed that while using a single standard of review is sufficient, it must take the relevant differences into account.⁽¹⁴⁶⁾ Justice O'Connor explained that the fundamental purpose of strict scrutiny was to do just that, to "take relevant differences into account."⁽¹⁴⁷⁾ The very purpose of strict scrutiny, according to the majority, is to distinguish between permissible and impermissible racial classifications by the government.⁽¹⁴⁸⁾ The majority also addressed Justice Steven's view (in dissent) that the majority's "view of consistency `equate[s] remedial preferences with invidious discrimination' and ignores the difference between `an engine of oppression' and an effort `to foster equality in society.'"⁽¹⁴⁹⁾ To this, the majority explained that its principle of consistency means that when the government treats individual people unequally because of their race, then they have suffered an injury within the meaning of the equal protection guarantee of the Constitution.⁽¹⁵⁰⁾ The principle of consistency is used to determine the circumstances surrounding the injury, then, through the use of the strict scrutiny standard, the court can determine "whether a compelling governmental interest justifies the infliction of that injury."⁽¹⁵¹⁾

The plurality also explained their reasoning in overruling the most recent case on point (Metro Broadcasting) and its standard of review (intermediate scrutiny), in favor of the strict scrutiny standard used in Croson.⁽¹⁵²⁾ Justice O'Connor explained that the decision in Metro Broadcasting undermined important equal protection principles established by the Court's decisions in cases dating back over fifty years.⁽¹⁵³⁾ These principles stand for the proposition "that the Constitution imposes upon federal, state, and local governmental actors the same obligation to respect the personal right to equal protection of the laws."⁽¹⁵⁴⁾ The majority concluded that because the reasoning of Metro Broadcasting departed from that of the prior case law, the decision in this case not to follow its reasoning "did not depart from the fabric of the law," but instead restored it.⁽¹⁵⁵⁾

Ultimately, the majority reasoned that the application of the strict scrutiny standard of review was essential to ensure that both state and federal racial classifications "serve a compelling governmental interest, and . . . be narrowly tailored to further that interest."⁽¹⁵⁶⁾ Justice O'Connor reasoned that this was the only way to ensure that courts give a detailed examination, both to the means and the ends, of governmental racial classifications.⁽¹⁵⁷⁾ The majority also noted in closing that they wished to dispel the notion that strict scrutiny is "`strict in theory, but fatal in fact.'"⁽¹⁵⁸⁾ Justice O'Connor noted that while racial discrimination persists in the United States against certain minorities, any race-based actions by the government must further a compelling interest, and be narrowly tailored to satisfy the restraints of the Constitution, thus satisfying the strict scrutiny standard.⁽¹⁵⁹⁾

Justice Scalia concurred in the judgment of the Court, but differed with the reasoning behind Justice O'Connor's explanation of stare decisis and the decision to overrule Metro Broadcasting, and follow Croson.⁽¹⁶⁰⁾ He explained that in his 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."⁽¹⁶¹⁾ Although Justice Scalia believes that individuals should be "made whole" who have been hurt by racial discrimination, he believes that "under our Constitution there can be no such thing as either a creditor or a debtor race," as this would undermine the focus of the Constitution on individuals.⁽¹⁶²⁾

Justice Thomas concurred in the judgment, and agreed "that strict scrutiny applies to all governmental classifications based on race,"⁽¹⁶³⁾ but wrote separately to rebut Justices Stevens' and Ginsburg's dissent that there be an exception to the principle of equal protection for (what he calls) governmental racial paternalism.⁽¹⁶⁴⁾ Justice Thomas reasoned that such "racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination,"⁽¹⁶⁵⁾ because of the accompanying stigmatism on those who are benefitted, and the inevitable resentment felt by those who believe they have been wronged by governmental racial classifications.⁽¹⁶⁶⁾ Ultimately, Justice Thomas reasoned that any racial classification may help one group, but only at the expense of another, and that therefore any governmental racial classification amounted to racial discrimination on the part of the government, and was therefore noxious to the Constitution.⁽¹⁶⁷⁾

C.  The Dissenters and Their Reasoning

The four Justices who did not join the Court in judgment (Justices Stevens, Ginsburg, Souter, and Breyer) wrote three dissents in this case.⁽¹⁶⁸⁾ Justice Stevens' dissent, which was joined by Justice Ginsburg, was the most detailed of the dissents, and specifically addressed Justice O'Conner's three propositions of skepticism, consistency, and congruence.⁽¹⁶⁹⁾ Justice Stevens reasoned that the plurality's decision to use a uniform standard of review in these cases would not lead to an agreement on how all applicable cases should be decided, and that therefore the plurality's comments on consistency and congruence should be evaluated with the same kind of skepticism that was applied to the underlying issue of governmental race-based measures.⁽¹⁷⁰⁾ Justice Stevens stated that the majority's assumption (based upon its proposition of consistency) that there was no significant difference between laws that burden minorities, and laws that benefit minorities was untenable.⁽¹⁷¹⁾ He noted that "[t]here 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."⁽¹⁷²⁾ Justice Stevens noted that although the plurality was unable "to differentiate between `invidious' and `benign' discrimination," the meaning of affirmative action was well understood in everyday parlance, and that therefore the public understood the difference between good and bad intentions.⁽¹⁷³⁾ Therefore, Justice Stevens concluded that "a single standard that purports to equate remedial preferences with invidious discrimination cannot be defended in the name of `equal protection.'"<sup>(174)</sup> Justice Stevens then addressed the majority's concept of congruence between federal and state race-based laws (and congruence between the substantive rights of the Fifth and Fourteenth Amendments),<sup>(175)</sup> reasoning that Congress should not be held to the same standard of scrutiny as states and municipalities because of the fact that it "`has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment,'"⁽¹⁷⁶⁾ and that (as our national legislature) it also represents the will of the entire nation through our elected officials.⁽¹⁷⁷⁾ Ultimately, Justice Stevens reasoned that the majority's concept of consistency ignored the difference between oppression and assistance,⁽¹⁷⁸⁾ the majority's concept of congruence ignored the fundamental constitutional differences between the states and the federal government,⁽¹⁷⁹⁾ and the majority failed to enforce the precedent of Metro Broadcasting, thus ignoring the proper force of stare decisis.⁽¹⁸⁰⁾

In Justice Souter's dissent (supporting judicial review based on intermediate scrutiny), joined by Justices Ginsburg and White, he reasoned that the majority failed to properly apply the Court's decision in Fullilove,⁽¹⁸¹⁾ and that if the majority had properly applied this reasoning, the statutes in question would have been upheld under both Fifth Amendment due process and Fourteenth Amendment equal protection.⁽¹⁸²⁾ Justice Souter also noted that nothing in the majority's opinion implied any kind of different view of the Section 5 congressional power under the Fourteenth Amendment that differed from those views expressed by the plurality in Fullilove.⁽¹⁸³⁾ Justice Souter thus concluded that the majority's decision "should leave s 5 [sic] exactly where it is as the source of an interest of the national government sufficiently important to satisfy the corresponding requirements of the strict scrutiny test."⁽¹⁸⁴⁾

Justice Ginsburg, joined by Justice Breyer, also wrote a separate dissent to underscore what she refers to as "the common understandings and concerns" that were revealed in the various opinions.⁽¹⁸⁵⁾ Justice Ginsburg specifically noted that "[t]he 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."⁽¹⁸⁶⁾ Justice Ginsburg acknowledged the usefulness of strict scrutiny to ensure that preferences based upon race "are not so large as to trammel unduly upon the opportunities of others,"⁽¹⁸⁷⁾ and concluded that Congress could continue to carefully design affirmative action measures that would finally provide equal protection of the laws under the Fourteenth Amendment.⁽¹⁸⁸⁾

IV.  Analysis

The majority in Adarand justified its decision to require strict scrutiny of all governmental racial classifications, by noting that this standard was necessary "to ensure that courts will consistently give racial classifications that kind of detailed examination, both as to ends and to means."⁽¹⁸⁹⁾ Justice O'Connor stated that only by strictly scrutinizing all race-based measures could the Court determine whether an individual's personal rights of equal protection of the laws had been infringed upon.⁽¹⁹⁰⁾ Yet, it has been pointed out by the dissent in Adarand,⁽¹⁹¹⁾ as well as by outside commentators,⁽¹⁹²⁾ that there is a vast difference between benign and invidious racial classifications, and that therefore, a more lenient standard of review should be used for the former.⁽¹⁹³⁾ This analysis will address the reasoning of the Adarand majority, and argue against the majority's use of strict scrutiny, in favor of the lesser intermediate standard of review for analyzing the constitutionality of benign race-based (or affirmative action) governmental actions. This Comment also challenges the reasoning behind the concurrences of Justices Scalia⁽¹⁹⁴⁾ and Thomas,⁽¹⁹⁵⁾ in which they assert that the Constitution requires that no distinctions ever be made on the basis of race.⁽¹⁹⁶⁾

A.  Benign Racial Classifications vs. Invidious Racial Classifications.

Benign race-based measures⁽¹⁹⁷⁾ in the United States have historically been enacted by the government in an effort to overcome racial discrimination, and to achieve cultural diversity primarily in classrooms and in the workplace.⁽¹⁹⁸⁾ These programs are based upon the understanding that minorities have been systematically excluded in areas such as education and employment in this country, and "that although formal state enforcement of segregation and other legal barriers to equal opportunity have been abandoned in the past thirty years, the legacy of discrimination is all too evident today."⁽¹⁹⁹⁾

In his dissent, Justice Stevens expressed his frustration with the majority's unwillingness to distinguish between benign racial classifications and invidious racial classifications when determining which standard of review would be applied to governmental race-based measures.⁽²⁰⁰⁾ It must be admitted that courts should be wary any time a governmental decision is made relying upon racial classifications,⁽²⁰¹⁾ yet, as Justice Stevens noted, the majority's decision to consistently apply strict scrutiny to all such measures, regardless of their intent and impact, would essentially "disregard the difference between a `No Trespassing' sign and a welcome mat."<sup>(202)</sup> Clearly, "[t]here is a vast difference between governmental classifications that use race `to advance debilitating stereotypes and the perpetuation of racial exclusion' and governmental distinctions based on race to promote a few identified compelling interests such as diversity."⁽²⁰³⁾ Invidious racial classifications, like those used in Hirabayashi and Korematsu,⁽²⁰⁴⁾ serve only to exclude disfavored citizens "from a position of equality to a position of second class citizenship," while benign racial classifications clearly "strive[] to return disfavored persons to a position of equal footing."⁽²⁰⁵⁾ In order to achieve this goal of equal footing, race must be a factor that is taken into account.⁽²⁰⁶⁾

Justice O'Connor, in her opinion, addressed the issue of benign versus invidious racial classifications by reasoning that whenever the government treats people unequally because of their race, there is an injury that must be reconciled with the equal protection guarantee of the Constitution.⁽²⁰⁷⁾ In Adarand, the injury was the denial of a government subcontract to Adarand Constructors, Inc. (even though it submitted the lowest bid), because it was not a minority owned business.⁽²⁰⁸⁾ This created an equal protection issue, and the lower court's job was to determine the validity of the law that led to the injury.⁽²⁰⁹⁾ Justice O'Connor's concept of consistency then required that the court apply strict scrutiny to determine whether that injury was justified by a compelling governmental interest.⁽²¹⁰⁾ Therefore, benign racial classifications are not entitled to the lesser standard of intermediate scrutiny, but must satisfy the strict scrutiny test of serving a compelling governmental interest, and being narrowly tailored to further those interests.⁽²¹¹⁾ For Justice O'Connor, racial classifications will satisfy this test when they are used to remedy past illegal discrimination.⁽²¹²⁾

It has been argued that many benign racial classifications (affirmative action programs) do serve to remedy past discrimination,⁽²¹³⁾ and in doing so, do minimal harm to what may be termed "`innocent' whites."<sup>(214)</sup> These "`innocent' whites" (much like the owner of Adarand Constructors, Inc.), Justice O'Connor would argue, are being harmed because of their race, thus raising an equal protection issue.⁽²¹⁵⁾ However, the majority's decision equating "the unequal treatment of blacks under racist policies and that of whites pursuant to an affirmative action plan" is superficial.⁽²¹⁶⁾ Strictly speaking, white candidates in the affirmative action context are not harmed because of their race, but instead as a "result of a design to eliminate the present effects of past discrimination."⁽²¹⁷⁾ Furthermore, the failure of the "`innocent' white" to attain a position because of racial classifications will effect those persons much differently than it would an African-American.<sup>(218)</sup> "Such a failure by a white is unlikely to lead to his being treated as a second-class citizen" while "[a] similar failure by a black, however, is likely to perpetuate the stigma of racial stereotypes and to inhibit the achievement of genuine equal dignity and respect."<sup>(219)</sup> Therefore, although affirmative action programs may treat whites and African-Americans differently, this does not necessarily mean that it is depriving whites of "legitimate equal opportunity rights."<sup>(220)</sup> When viewed in the proper historical perspective, the only thing that affirmative action seems to deprive the "`innocent' white" person of is "the increased prospects of success gained as a consequence of the racially discriminatory acts (or omissions) of the state."⁽²²¹⁾ This view has been summed up as follows:

The reduction in the prospects of blacks attributable to official racial discrimination has already produced a windfall in the form of increased prospects of success for all the other competitors seeking to obtain scarce public goods. In this sense, affirmative action merely restores the equal-opportunity balance, placing both blacks and whites in the position in which formal . . . equality of opportunity would have left them absent official racial discrimination. Consistent with this, affirmative action designed to remedy the present effects of past discrimination does not take away from `innocent' whites anything that they have rightfully earned, such as educational skills developed through hard work, and which they deserve to keep. Even if completely innocently acquired, the increased prospects of success gained through the unjust treatment of blacks are entirely undeserved. Thus, although the loss of these increased prospects may result in bitter disappointment, it does not amount to a violation of any equal opportunity right.⁽²²²⁾

Justice Souter, in his Adarand dissent, agreed with the reasoning behind using "catch-up" mechanisms to eliminate the lingering effects of racial discrimination.⁽²²³⁾ Ultimately, it must be noted that the price paid by innocent whites as a result of racial classifications "is a price to be paid only temporarily."⁽²²⁴⁾ Because affirmative action programs are only meant to be temporary remedies to eliminate the effects of past illegal discrimination, "the assumption is that the effects will themselves recede into the past, becoming attenuated and finally disappearing."⁽²²⁵⁾ Perhaps the key to addressing the concerns of the majority in Adarand, who feel that affirmative action programs are detrimental to the equal protection rights of non beneficiaries, is to remind them that these programs are only temporary remedies that should be abandoned, but only after the lingering effects of past illegal discrimination are eradicated from the workplaces and schools of the United States.⁽²²⁶⁾

B.  The Fallacy of a Color-Blind Society and Constitution

The crucial fourth and fifth votes for the majority in Adarand came from the concurrences of conservative Justices Scalia and Thomas.⁽²²⁷⁾ In Justice Scalia's concurrence, he expressed the view that the "government can never have a `compelling interest' in discriminating on the basis of race in order to `make up' for past racial discrimination," yet he nevertheless signed on to the strict scrutiny standard for race-based classifications.⁽²²⁸⁾ Justice Scalia went on to assert that "[i]n the eyes of the Government, we are just one race here. It is American."⁽²²⁹⁾ This simplistic approach, however, is clearly flawed for several reasons.⁽²³⁰⁾ First, "[s]trict confinement to color-blindness would preclude the use of race-conscious policies even for the limited purpose of compensating actual victims of official breaches of the color-blind principle."⁽²³¹⁾ Also, strict adherence to color-blindness would be completely incompatible with the Court's use "of color-conscious remedies in a long line of school desegregation cases."⁽²³²⁾

Another flaw in Justice Scalia's reasoning was his refusal to acknowledge that "[i]n the United States, most societal decisions have an appreciable impact on racially identifiable interests. And all of [these] decisions are race-conscious decisions."⁽²³³⁾ By insisting on color-blindness, Justice Scalia ignores the fact that our society has historically been, and continues to be, a race-conscious culture.⁽²³⁴⁾ Indeed, "race is so intrinsic in our societal decisionmaking that the option of race neutrality is simply unavailable."⁽²³⁵⁾ Therefore, when Justice Scalia reasons that we are all one race in the eyes of the government, he is clearly endorsing the socio-economic status quo in our country.⁽²³⁶⁾ Unfortunately, the status quo in our country means "continued racial discrimination in favor of whites and against racial minorities."⁽²³⁷⁾

Justice Thomas, in his Adarand concurrence, agreed with Justice Scalia's reasoning that the Constitution is color-blind, and that therefore, under its principles, "the government may not make distinctions on the basis of race."⁽²³⁸⁾ For Justice Thomas, affirmative action programs are nothing more than a form of "racial paternalism," which serve only to stigmatize minorities who benefit from such programs.⁽²³⁹⁾ Justice Thomas reasoned that "[t]hese programs stamp minorities with a badge of inferiority,"⁽²⁴⁰⁾ and provoke resentment from those people (perhaps the "innocent white") who believe that the government's use of racial classifications have wronged them.⁽²⁴¹⁾ Therefore, he concluded that the use of governmental benign racial classifications amounted to nothing more than "government-sponsored racial discrimination."⁽²⁴²⁾ There are, however, several flaws in the reasoning of Justice Thomas' concurrence, including, most notably, those raised by Justice Stevens in his dissent.⁽²⁴³⁾

First of all, it must be noted that the beneficiaries of the affirmative action program in Adarand (presumably the people who are being stigmatized under Justice Thomas' reasoning), are not the ones who are challenging the constitutionality of that program.⁽²⁴⁴⁾ Justice Stevens believes that this is "perhaps because they do not find the preferences stigmatizing, or perhaps because their ability to opt out of the program provides them all the relief they would need."⁽²⁴⁵⁾ Certainly, if beneficiaries of affirmative action programs do feel stigmatized, opting out of the program should provide all the necessary relief that is needed, without jeopardizing the program for those beneficiaries who do not feel this stigmatism.⁽²⁴⁶⁾ Even if beneficiaries of affirmative action programs did challenge the stigmatizing effects of such programs, Justice Stevens reasoned that this still would not justify "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."⁽²⁴⁷⁾ Justice Stevens was also not convinced that the stigmatism or psychological damage caused by affirmative action was any where near as severe as the damages that was caused by our nation's long history of racial subjugation.⁽²⁴⁸⁾ As Justice Stevens observed in his dissenting opinion in Wygant v. Jackson Board of Education:⁽²⁴⁹⁾

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 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," and repugnant to the principles of a free and democratic society.⁽²⁵⁰⁾

Ultimately, however, it must be left up to the legislature to determine when or if its affirmative action programs are doing more harm than good to the beneficiaries of those programs, and ultimately any kind of remedy for these people must be left to Congress.⁽²⁵¹⁾

C.  The Emergence of a Four-Justice Voting Bloc Willing to Uphold Reasonable Benign Governmental Racial Classifications⁽²⁵²⁾

What is perhaps the most encouraging aspect of the Adarand decision, in the context of the continued viability of affirmative action programs, is the willingness of the four dissenters in this case to uphold reasonable affirmative action programs.⁽²⁵³⁾ The Adarand decision was the first opportunity Justices Breyer and Ginsburg had to address the issue, and it was the "`first real shot'" that Justice Souter had at the issue.⁽²⁵⁴⁾ It has also been noted that Justice Stevens, "although unpredictable in the past, seems to have come around to a willingness to uphold affirmative action programs."⁽²⁵⁵⁾ Perhaps it is the dissent of Justice Souter, which is the most significant factor in limiting the ramifications of the majority's decision.⁽²⁵⁶⁾ In his dissent, Justice Souter observed that the decision in Adarand was very narrow, and that the statutory scheme in question should have been deemed constitutional because the petitioners failed to distinguish Adarand's facts from those in Fullilove.⁽²⁵⁷⁾ Justice Souter felt that once Fullilove was properly applied to the statutes in Adarand, they "would pass muster under the Fifth Amendment due process and Fourteenth Amendment equal protection" because they were "substantially better tailored to the harm being remedied than the statute endorsed in Fullilove."⁽²⁵⁸⁾ Most importantly, however, was Justice Souter's observation "that the majority did not clearly hold that Congress' special power under section 5 of the Fourteenth Amendment to deal with racial discrimination is not itself enough to satisfy strict scrutiny."⁽²⁵⁹⁾ Justice Souter, therefore, concluded that the Adarand "decision should leave section five 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."⁽²⁶⁰⁾ Following Justice Souter's reasoning, it could be argued that because such broad deferential treatment must be given to Congress under section five power, the necessary "compelling interest" branch of the strict scrutiny test should be met when Congress creates racial classifications.⁽²⁶¹⁾ If this reasoning is followed by the Court in future cases, the effect of the Adarand decision on the viability of affirmative action programs could be greatly diminished.⁽²⁶²⁾ However, given the current political climate in the United States, it seems unlikely that Congress will continue to enact any broad based affirmative action programs.⁽²⁶³⁾

Ultimately, it is possible that because of the emergence of this four-Justice voting bloc (the four dissenters in Adarand), eventually a fifth vote will give a majority decision which "will conclude that Congress does have special authority to find an equal protection violation and thus can use race-based programs to remedy what it finds to be unlawful discrimination."⁽²⁶⁴⁾ However, as the decision in Adarand proved, the key to upholding any such programs will be to convince Justice O'Connor that the racial classifications fulfill the strict scrutiny standard.⁽²⁶⁵⁾ For Justice O'Connor, the primary way to fulfill this standard is to show that the racial classification is necessary to remedy past illegal discrimination, and that race-neutral remedies have already proven ineffective.⁽²⁶⁶⁾ Justice O'Connor did note in the Adarand decision, however, that she wished "to dispel the notion that `"`strict scrutiny is strict in theory, but fatal in fact.'"'"⁽²⁶⁷⁾ It therefore appears that the strict scrutiny used to evaluate racial classifications (particularly those made by Congress), under equal protection, may be more flexible than the standard used to invalidate governmental laws in the past.⁽²⁶⁸⁾

V.  Conclusion

The Supreme Court's decision in Adarand, to apply strict scrutiny to all constitutional challenges to race-based measures, was not much of a surprise to constitutional scholars.⁽²⁶⁹⁾ Justice O'Connor, who wrote the opinion, also wrote the dissent in Metro Broadcasting, where she was joined by Justices Scalia, Kennedy, and Rehnquist.⁽²⁷⁰⁾ The key difference in Adarand was the fact that the crucial fifth vote was cast by Justice Marshall's replacement, Justice Thomas.⁽²⁷¹⁾ How this decision will effect affirmative action programs is questionable, however, because there is a discrepancy between the views of Justice Scalia and Thomas (who indicated their belief that affirmative action programs could not survive strict scrutiny), and that of Justice O'Connor who "`went out of her way' to say that strict scrutiny would not be `fatal in fact.'"⁽²⁷²⁾ Historically, however, the label of strict scrutiny has been understood to signal the death knell for governmental programs that have been analyzed under the standard.⁽²⁷³⁾

Although the majority indicated that there may be more flexibility under the strict scrutiny standard when it is applied to benign racial classifications, "there is a danger that the fatal language of `strict scrutiny' will skew the analysis and place well-crafted benign programs at unnecessary risk."⁽²⁷⁴⁾ In accordance with the Adarand decision, the Court will apply strict scrutiny to both invidious and benign-race based measures, while it will continue only to apply intermediate scrutiny to cases of invidious gender discrimination.⁽²⁷⁵⁾ As a result, the Adarand decision produces an anomalous result, because it is easier for the government to enact affirmative action programs based on gender than it is for affirmative action programs based on race, "even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves."⁽²⁷⁶⁾ Perhaps Justice Stevens summed it up best when he noted that the majority's preoccupation with abstract standards had "risk[ed] sacrificing common sense at the altar of formal consistency."⁽²⁷⁷⁾ Ultimately, for supporters of affirmative action programs, the one true bright spot in Adarand was the emergence of the four-Justice voting bloc willing to uphold reasonable affirmative action programs.⁽²⁷⁸⁾ In the end, the viability of affirmative action programs may hinge on whether the four dissenters in Adarand can pick up the crucial fifth vote, recognizing the compelling interest of the Congress to enact remedial race-based measures under the broad power of section five of the Fourteenth Amendment.⁽²⁷⁹⁾

Michael L. Manuel^(*)

1. See LAUGHLIN MCDONALD & JOHN A. POWELL, THE RIGHTS OF RACIAL MINORITIES 1 (1993) ("American democracy was founded on a contradiction--that all people were equal but that human slavery was tolerable. . . . The subsequent history of this nation has been in large measure the story--often violent, sometimes heroic, and always traumatic--of its attempts to reconcile its stated beliefs with its actual racial practices.").

2. See GIRARDEAU A. SPANN, RACE AGAINST THE COURT 119 (1993).

3. Robert C. Power, Affirmative Action and Judicial Incoherence, 55 Ohio St. L.J. 79, 81 (1994). This incoherence is a result of several different factors, including the tendency of the Court to issue plurality (and separate) opinions, and its increased willingness to differentiate previous decisions solely on their facts, thus weakening the doctrine of stare decisis. See id. at 124-38. Compare City of Richmond v. J.A. Croson Co., 488 U.S. 469, 486 (1989) (holding that the single standard of review for racial classifications is strict scrutiny) with Metro Broad., Inc. v. FCC, 497 U.S. 547, 564-65 (1990) (holding that only intermediate scrutiny need be satisfied to uphold benign federal racial classifications), overruled by Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).

4. Benign race-conscious measures have generally been construed by the Court as those which are remedial, and intended "to compensate victims of past governmental or societal discrimination." Metro Broad., 497 U.S. at 565. The Court also noted that benign race-based measures are "as old as the Fourteenth Amendment." Id. at 564 n.12.

5. 115 S. Ct. 2097 (1995).

6. See id. at 2113.

7. Id. Justice O'Connor also noted that this holding overruled the Court's prior holding in Metro Broadcasting to the extent that an intermediate scrutiny standard be used for reviewing benign racial classifications. See id.

8. See id. at 2120 (Stevens, J., dissenting).

9. See infra notes 13-83 and accompanying text.

10. See infra notes 84-188 and accompanying text.

11. See infra notes 189-268 and accompanying text.

12. See infra notes 269-79 and accompanying text.

13. U.S. CONST. amend. V, ("No person shall . . . be deprived of life, liberty, or property, without due process of law . . . . ").

14. U.S. CONST. amend. XIV, § 1. ("No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.").

15. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2106 (1995) (citing Detroit Bank v. United States, 317 U.S. 329, 337 (1943)); see also Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941); LaBelle Iron Works v. United States, 256 U.S. 377, 392 (1921).

16. 320 U.S. 81 (1943).

17. See id. at 83-85; see also Korematsu v. United States, 323 U.S. 214, 217 (1944).

18. Adarand, 115 S. Ct. at 2106 (reasoning that the Fifth Amendment only restrained discriminatory legislation by Congress when it amounted to a denial of due process) (quoting Hirabayashi, 320 U.S. at 100).

19. 323 U.S. 214 (1944).

20. See id. at 223-24.

21. See id. at 215-16. The petitioner was charged with violating an Act of Congress, which provided:

[W]hoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.

Id. at 216 (quoting Act of Mar. 21, 1942, Pub. L. No. 77-503, 56 Stat. 173).

22. See id. at 217.

23. See Korematsu, 323 U.S. at 216-18; see also Adarand, 115 S. Ct. at 2106.

24. Korematsu, 323 U.S. at 216.

25. See id. at 218-19. "Congress has recently agreed with the dissent[ing Justices Roberts, Murphy, and Jackson who claimed that the challenged order was indeed racist], and has attempted to make amends." Adarand, 115 S. Ct. at 2106 n.* ("`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'" (quoting Restitution for World War II Internment of Japanese-Americans and Aleuts, Pub. L. No. 100-383, 102 Stat. 903 (codified as amended at 50 app. U.S.C. § 1989 (1994)))).

26. 347 U.S. 497 (1954).

27. See id. at 499-500; see also Adarand, 115 S. Ct. at 2107.

28. See Bolling, 347 U.S. at 498.

29. See id.

30. 347 U.S. 483 (1954).

31. See Bolling, 347 U.S. at 498.

32. See id. at 498-99.

33. Id. at 499 (footnote omitted).

34. See id.

35. Id. at 500, quoted in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2107 (1995).

36. See Adarand, 115 S. Ct. at 2107.

37. 379 U.S. 184 (1964).

38. Adarand, 115 S. Ct. at 2107 (citing McLaughlin, 379 U.S. at 191-92).

39. See id. ("[O]ne commentator observed that `[i]n case after case, fifth amendment equal protection problems are discussed on the assumption that fourteenth amendment precedents are controlling.'" (quoting Kenneth L. Karst, The Fifth Amendment's Guarantee of Equal Protection, 55 N.C. L. Rev. 541, 554 (1977))); see also Frontiero v. Richardson, 411 U.S. 677, 682-83 (1973) (Brennan, J., for a plurality); Reed v. Reed, 404 U.S. 71, 73-76 (1971).

40. 420 U.S. 636 (1975).

41. Id. at 638 n.2, quoted in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2108 (1995).

42. 438 U.S. 265 (1978).

43. See generally id. at 287-320; see also Adarand, 115 S. Ct. at 2108.

44. See Bakke, 438 U.S. at 272-81.

45. Bakke, 438 U.S. at 291.

46. See id.; see also id. at 302-05 (Powell, J., for a plurality); Fullilove v. Klutznick, 448 U.S. 448, 496 (1980) (Powell, J., concurring) ("Racial classifications must be assessed under the most stringent level of review . . . .").

47. See Bakke, 438 U.S. at 320 (Powell, J., for a plurality).

48. See id. (Powell, J., for a plurality).

49. 448 U.S. 448 (1980).

50. Pub. L. No. 95-28, 91 Stat. 116 (codified as amended at 42 U.S.C. § 6705(f)(2) (1994)).

51. Fullilove, 448 U.S. at 474 (Burger, C.J., for a plurality). Minority group members were defined as "`Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.'" Id. at 454 (Burger, C.J., for a plurality) (quoting Public Works Employment Act of 1977, Pub. L. No. 95-28, 91 Stat. 116 (codified as amended at 42 U.S.C. § 6705(f)(2) (1994)).

52. See id. at 492 (Burger, C.J., for a plurality).

53. See id. (Burger, C.J., for a plurality).

54. Id. at 491 (Burger, C.J., for a plurality).

55. Id. at 473 (Burger, C.J., for a plurality), quoted in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2109 (1995).

56. See Fullilove, 448 U.S. at 496 (Powell, J., concurring), noted in Adarand, 115 S. Ct. at 2109.

57. 476 U.S. 267 (1986).

58. See id. at 269-70 (Powell, J., for a plurality). "Article VII of the CBA [Collective Bargaining Agreement] defined `minority group personnel' as `those employees who are Black, American Indian, Oriental, or of Spanish descendancy.'" Id. at 271 n.2 (Powell, J., for a plurality) (quoting Brief for the Appellant at 15, Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (No. 84-1340)).

59. Id. at 274 (Powell, J., for a plurality).

60. See id. at 284 (Powell, J., for a plurality). Justice Powell noted that:

There is no explanation of why the Board chose to favor these particular minorities or how in fact members of some of the categories can be identified. Moreover, respondents have never suggested--much less formally found--that they have engaged in prior, purposeful discrimination against members of each of these minority groups.

Id. at 284 n.13 (Powell, J., for a plurality).

61. Id. at 276 (Powell, J., for a plurality), quoted in Adarand, 115 S. Ct. at 2109. Once again, Justices Marshall, Brennan, and Blackmun dissented, arguing for intermediate scrutiny of remedial race-based measures. See id. at 301-02 (Marshall, J., dissenting).

62. See Adarand, 115 S. Ct. at 2109. ("`The absence of an Opinion of the Court in either Bakke or Fullilove and the concomitant failure of the Court to articulate an analytical framework supporting the judgments makes the position of the lower federal courts considering the constitutionality of affirmative action programs somewhat vulnerable.'" (quoting Kromnick v. School Dist. of Phila., 739 F.2d 894, 901 (3d Cir. 1984))).

63. 488 U.S. 469 (1989).

64. Id. at 477. This plan was codified in the city code and considered Minority Business Enterprises to be those companies that were at least 51% "`owned and controlled . . . by minority group members.'" Id. at 478 (quoting RICHMOND, VA., CITY CODE § 12-156(a) (1985)). The plan was characterized by the City Council as "`remedial' in nature," and "`[m]inority group members'" included U.S. citizens who were Oriental, Indian, Eskimo, Aleut, Black, or Spanish-speaking. Id. (quoting RICHMOND, VA., CITY CODE § 12-156(a) (1985)).

65. See id. at 508. The Court elaborated stating that "[u]nder Richmond's scheme, a successful black, Hispanic, or Oriental entrepreneur from anywhere in the country enjoys an absolute preference over other citizens based solely on their race." Id.

66. See id. at 505. The Court called Richmond's plan grossly overinclusive, noting that there was "absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the Richmond construction industry." Id. at 506. The Court also reasoned that "[t]o accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for `remedial relief' for every disadvantaged group." Id. at 505.

67. See id. at 476. Justice O'Connor, who wrote the plurality opinion for the Court with respect to Part III-A, was joined by Chief Justice Rehnquist, Justices White and Kennedy in the decision. See id. at 493-98 (O'Connor, J., for a plurality). Justice Scalia concurred in judgment. See id. at 520 (Scalia, J., concurring in the judgment).

68. Id. at 494 (O'Connor, J., for a plurality) (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 279-80 (1986)).

69. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2110 (1995).

70. See id. ("Croson's facts did not implicate Congress' broad power under § 5 of the Fourteenth Amendment.").

71. See id.

72. 497 U.S. 547 (1990), overruled by Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).

73. See id. at 552.

74. See id. The FCC favorably took into account the minority ownership status of businesses seeking to get new licenses. See id. at 556. The six principal factors considered in the process included: "diversification of control of mass media communications, full-time participation in station operation by owners . . . , proposed program service, past broadcast record, efficient use of the frequency, and the character of the applicants." Id.

75. Id. at 557. The FCC's term "minority" included Blacks, Hispanics, American Eskimos, Aleutians, American Indians, and people of Asiatic American extraction. Id. at 554 n.1 (citing Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 980 n.8 (1978)).

76. Adarand, 115 S. Ct. at 2111.

77. Id. at 2011-12 (quoting Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (footnote omitted)).

78. Metro Broad., 497 U.S. at 564-65 (footnote omitted), quoted in Adarand, 115 S. Ct. at 2112.

79. See id. at 566.

80. Id. at 563.

81. Id. (citations omitted). One commentator noted that this "distinction was not new in Metro, as the Richmond [Croson] plurality relied on it to impose strict scrutiny on state and local action without overruling Fullilove v. Klutznick." Power, supra note 3, at 112.

82. See Power, supra note 3, at 159.

83. 115 S. Ct. 2097 (1995).

84. See id. at 2101.

85. See id. at 2102.

86. Id. (citing Brief for Appellant at 24, Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995) (No. 93-1841)).

87. See id.

88. See id.

89. See Adarand, 115 S. Ct. 2097, 2102 (1995) ("Mountain Gravel's Chief Estimator . . . 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.").

90. See id.

91. Id. (quoting 15 U.S.C. § 637 (d)(3)(c) (1994)).

92. Id.

93. Id. (quoting 15 U.S.C. § 637(d)(1) (1994)).

94. Id. (quoting 15 U.S.C. § 637(a)(5) (1994)).

95. Adarand, 115 S. Ct. at 2102 (quoting 15 U.S.C. § 637(a)(5) (1994)).

96. Id. (quoting 15 U.S.C. § 644(g)(1) (1994)).

97. Id. at 2102 (citations omitted).

98. See id. at 2103.

99. Id. (quoting Surface Transportation and Relocation Act, Pub.L. 100-17, 101 Stat. 106(c)(1) (codified as amended at 23 U.S.C. § 101 (1994)).

100. Id. (quoting 15 USC §644(g)(1) (1994)).

101. See Adarand, 115 S. Ct. at 2103.

102. See id. (citing 49 C.F.R. § 23.62 (1994)).

103. See id. (citing 49 C.F.R. § 23.69 (1994)).

104. Id.

105. Id.

106. See id. at 2104.

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.

Id. (quoting Appellant's Brief at 24-26, Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995) (No. 93-1841)). The record in this case does not indicate exactly through which method Gonzales acquired its DBE status. See id.

107. Adarand, 115 S. Ct. at 2104.

108. See id. (citing Brief for Appellant at 22-23, Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995) (No. 93-1841)).

109. See id.; see also Adarand Constructors, Inc. v. Skinner, 790 F. Supp. 240, 245 (D. Colo. 1992), aff'd sub nom. Adarand Constructors, Inc. v. Pena, 16 F.3d 1537 (10th Cir. 1994), and vacated, 115 S. Ct. 2097 (1995).

110. See Adarand, 115 S. Ct. at 2104; see also Adarand Constructors, Inc. v. Pena, 16 F.3d 1537, 1539 (10th Cir. 1994), vacated, 115 S. Ct. 2097 (1995).

111. See Adarand, 115 S. Ct. at 2104; Adarand, 16 F.3d at 1547.

112. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 41, 41 (1995).

113. See Adarand, 115 S. Ct. at 2104.

114. Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

115. Id. at 2105 (quoting General Contractors v. Jacksonville, 508 U.S. 656, 667 (1993)).

116. See id.

117. See id.

118. See id. at 2100.

119. See Adarand, 115 S. Ct. at 2105-12.

120. See id. at 2106; see also supra notes 13-25 and accompanying text.

121. See Adarand, 115 S. Ct. at 2107; see also supra notes 26-41 and accompanying text.

122. See Adarand, 115 S. Ct. at 2108-09; see also supra notes 42-62 and accompanying text.

123. Adarand, 115 S. Ct. at 2109. Here, the court noted that although a heightened level of scrutiny had been consistently required by the Court when reviewing racial or ethnic distinctions made for remedial purposes, it had not yet reached a consensus on the Constitutional analysis that was appropriate. See id. at 2109-10 (citing United States v. Paradise, 480 U.S. 149, 166 (1987) (Brennan, J., for a plurality)).

124. See id. at 2110; see also supra notes 63-71 and accompanying text.

125. Adarand, 115 S. Ct. at 2110; see also supra notes 63-71 and accompanying text.

126. See Adarand, 115 S. Ct. at 2110. "Croson certainly did not resolve the substantial questions posed by congressional programs which mandate the use of racial preferences." Shurberg Broad. of Hartford, Inc. v. FCC, 876 F.2d 902, 959 (D.C. Cir. 1989) (Wald, J., dissenting), quoted in Adarand, 115 S. Ct. at 2111.

127. Adarand, 115 S. Ct. at 2111 (1995).

128. See id.

129. Id. (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986) (Powell, J., for a plurality) (quoting Fullilove v. Klutznick, 448 U.S. 448, 491 (1980) (Burger, C.J., for a plurality))).

130. Id. (quoting Richmond. v. J.A. Croson Co., 488 U.S. 469, 494 (1989) (O'Connor, J., for a plurality)).

131. See id. The majority cited the following cases for this proposition of congruence: Buckley v. Valeo, 424 U.S. 92, 93 (1975) (per curiam); Weinberger v. Wiesenfeld, 420 U.S., 636, 638 n.2 (1975); and Bolling v. Sharpe, 347 U.S. 497, 500 (1954).

132. Adarand, 115 S. Ct. at 2111.

133. See id. at 2111-12; Metro Broad., Inc. v. FCC, 497 U.S. 547, 564-65 (1990), overruled by Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); see also supra notes 72-83 and accompanying text.

134. See Adarand, 115 S. Ct. at 2111.

135. Id. at 2112.

136. Id.

137. Id. (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (O'Connor, J., for a plurality)). Justice O'Connor quoted her opinion from Croson:

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.

Id. (quoting Croson, 488 U.S. at 493 (O'Connor, J., for a plurality)).

138. See id. ("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 benefitted group is critical to the determination of which standard of review to apply."). This reasoning was a significant departure of the reasoning used in previous cases. See id.

139. See id. Skepticism of racial classifications is undermined because "benign" racial classifications are treated less skeptically under the Metro Broadcasting decision. See id.; see also supra note 137. The proposition that "consistency of treatment irrespective of the race of the burdened or benefitted group," is also undermined because, under Metro Broadcasting, the race of the group to be benefitted was essential to determine which standard of review the Court would apply. Adarand, 115 S. Ct. at 2112; see also supra note 137.

140. See Adarand, 115 S. Ct. at 2112.

141. Id. at 2112-13. Justice O'Connor noted that the idea of the Fifth and Fourteenth Amendment applying to persons, and not to groups, had been a central part of the Court's analysis of equal protection, and that therefore "holding `benign' state and federal racial classifications to different standards does not square with them." Id. at 2113.

142. See id. at 2113 ("In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.").

143. See id.

144. See id.

145. See id. at 2122 (Stevens, J., dissenting).

146. See Adarand, 115 S. Ct. at 2122 (Stevens, J., dissenting).

147. Id. at 2113. Justice O'Connor noted that "[t]he 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." Id.

148. See id.

149. Id. at 2114 (quoting id. at 2122 (Stevens, J., dissenting)).

150. See id.

151. Id. The majority justified their use of the proposition of consistency by recognizing "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." Id.

152. See Adarand, 115 S. Ct. at 2114-15.

153. See id. at 2115; see also supra Part II.

154. Adarand, 115 S. Ct. at 2115.

155. Id. at 2116. The majority also noted that the different standards of review, for federal and state racial classifications, used in Metro Broadcasting had been criticized consistently by commentators. See id. at 2115.

156. Id. at 2117.

157. See id. The plurality cited Korematsu for the proposition that even under "`the most rigid scrutiny'" (strict scrutiny), courts can still fail to detect racial classifications that are illegitimate under the Constitution. Id. (quoting Korematsu v. United States,323 U.S. 214, 216 (1944)).

158. Id. (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in the judgment)).

159. Id. Here the majority noted that "[a]s recently as 1987, . . . every Justice of this Court agreed that the Alabama Department of Public Safety's `pervasive, systematic, and obstinate discriminatory conduct' justified a narrowly tailored race-based remedy." Id. (quoting United States v. Paradise, 480 U.S. 149, 167 (1987) (Brennan, J., for a plurality)).

160. See Adarand, 115 S. Ct. at 2118 (Scalia, J., concurring in part and concurring in the judgment). Justice Scalia did not explain his reluctance to join the part of the plurality decision dealing with stare decisis. See id. (Scalia, J., concurring in part and concurring in the judgment).

161. Id. (Scalia, J., concurring in part and concurring in the judgment) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J., concurring in the judgment)).

162. Id. (Scalia, J., concurring in part and concurring in the judgment) Justice Scalia reasoned that "[t]o 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." Id. at 2119 (Scalia, J., concurring in part and concurring in the judgment).

163. Id. at 2119 (Thomas, J., concurring in part and concurring in the judgment).

164. See id. (Thomas, J., concurring in part and concurring in the judgment). Justice Thomas explained that even though programs such as the one at issue here are motivated by good intentions, these intentions "cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race." Id. (Thomas, J., concurring in part and concurring in the judgment).

165. Id. (Thomas, J., concurring in part and concurring in the judgment).

166. See Adarand, 115 S. Ct. at 2119 (Thomas, J., concurring in part and concurring in the judgment). Justice Thomas went on to note that "[t]hese 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." Id. (Thomas, J., concurring in part and concurring in the judgment).

167. See id. at 2119 & n.1 (Thomas, J., concurring in part and concurring in the judgment).

168. Justice Stevens' dissent was joined by Justice Ginsburg. See id. at 2120-31 (Stevens, J., dissenting). Justice Souter's dissent was joined by Justices Ginsburg and Breyer. See id. at 2131-34 (Souter, J., dissenting). Justice Ginsburg's dissent was joined by Justice Breyer. See id. at 2134-36 (Ginsburg, J., dissenting).

169. See id. at 2120-26 (Stevens, J., dissenting); see also supra notes 127-43 and accompanying text.

170. See id. at 2120 (Stevens, J., dissenting).

171. See id. (Stevens, J., dissenting).

172. Adarand, 115 S. Ct. at 2120 (Stevens, J., dissenting). Justice Stevens went on to explain:

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. . . . 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.

Id. at 2121 (Stevens, J., dissenting).

173. Id. at 2121 (Stevens, J., dissenting). Here Justice Stevens also used the example that "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.'" Id. at 2122 (Stevens, J., dissenting).

174. Id. at 2122 (Stevens, J., dissenting). Here Justice Stevens also addressed Justice Thomas' concurrence in which he referred to affirmative action as a form of racial paternalism. See supra notes 163-67 and accompanying text. Justice Stevens stated, "[i]t is one thing to question the wisdom of affirmative-action, [but altogether different] to equate the many well-meaning and intelligent lawmakers and their constituents . . . who have supported affirmative action over the years, to segregationists and bigots." Id. at 2123 n.5 (Stevens, J., dissenting).

175. See id. at 2123-25 (Stevens, J., dissenting); see also notes 138-43 and accompanying text.

176. See id. at 2124 (Stevens, J., dissenting) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1988) (O'Connor, J., for a plurality)).

177. See id. at 2125 (Stevens, J., dissenting).

178. See Adarand, 115 S. Ct. at 2131 (Souter, J., dissenting).

179. See id. (Souter, J., dissenting).

180. See id. (Souter, J., dissenting).

181. See id. at 2132 (Souter, J., dissenting); see also supra notes 49-56 and accompanying text.

182. See Adarand, 115 S. Ct. at 2132 (Souter, J., dissenting). Justice Souter noted "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 Amendment." Id. (Souter, J., dissenting) (footnote omitted).

183. See id. at 2133 (Souter, J., dissenting). Noting the disagreement between the Justices writing for the majority on the extent of section five power, Justice Souter reasoned that therefore the opinion in this case did not in any way affect broad congressional power under that section. See id. (Souter, J., dissenting).

184. Id. (Souter, J., dissenting). Justice Souter also reasoned that although the majority now called the proper standard of review strict scrutiny, this would not change "the standard by which the burden of a remedial racial preference is to be judged as reasonable or not at any given time." Id. at 2134 (Souter, J., dissenting).

185. Id. at 2134 (Ginsburg, J., dissenting). These common understandings includes our country's history of slavery, and continued racism that faces minorities in housing opportunities, business opportunities, employment, and everyday life. See id. at 2134-36 (Ginsburg, J., dissenting).

186. See id. at 2135 (Ginsburg, J., dissenting).

187. Id. at 2136 (Ginsburg, J., dissenting).

188. See Adarand, 115 S. Ct. at 2136 (Ginsburg, J., dissenting).

189. Id. at 2117; see also supra Part III.

190. See Adarand, 115 S. Ct. at 2113.

191. See id. at 2120 (Stevens, J., dissenting).

192. See MCDONALD & POWELL, supra note 1, at 243 (recognizing that there is a vast difference between governmental race-based measures that are meant to exclude minorities from opportunities, and such measures that use racial classifications to "correct the effects of past discrimination"); Michel Rosenfeld, Decoding Richmond: Affirmative Action and the Elusive Meaning of Constitutional Equality, 87 Mich. L. Rev. 1729, 1789-90 (1989) (noting the difference between racial discrimination that is intended to demean and degrade, and compensatory affirmative action that is intended to integrate victims into society's mainstream).

193. See Adarand, 115 S. Ct. at 2131 (Stevens, J., dissenting).

194. See id. at 2118-19 (Scalia, J., concurring in part and concurring in the judgment).

195. See id. at 2119 (Thomas, J., concurring in part and concurring in the judgment).

196. See infra notes 227-51 and accompanying text.

197. For the purpose of this analysis, benign race-based measures are synonymous with what is commonly referred to as affirmative action in this country.

198. See MCDONALD & POWELL, supra note 1, at 240.

199. Id.; see also Adarand, 115 S. Ct. at 2135 (Ginsburg, J., dissenting) (noting that even in this difficult opinion, the Court still recognized the persistence of racial inequality, discrimination's lingering effect, and the authority of Congress to affirmatively counteract these effects).

200. See Adarand, 115 S. Ct. at 2120 (Stevens, J., dissenting).

201. See id. (Stevens, J., dissenting); see also Fullilove v. Klutznick, 448 U.S. 448, 533-35 (1980) (Stevens, J., dissenting).

202. Adarand, 115 S. Ct. at 2121 (Stevens, J., dissenting). Here Justice Stevens admitted that although some cases were hard to classify, nevertheless "our equal protection jurisprudence has identified a critical difference between state action that imposes burdens on a disfavored few and state action that benefits the few `in spite of' its adverse effects on the many." Id. at 2122 (Stevens, J., dissenting) (quoting Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).

203. MCDONALD & POWELL, supra note 1, at 243 (quoting Constitutional Scholars' Statement on Affirmative Action after City of Richmond v. J.A. Croson Co., 98 Yale L.J. 1711, 1713 (1989)).

204. See supra notes 13-25 and accompanying text.

205. MCDONALD & POWELL, supra note 1, at 243.

206. See id. (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 (1986)).

207. See Adarand, 115 S. Ct. at 2114.

208. See id. at 2102.

209. See id. at 2118. Justice O'Connor reasoned that "[c]onsistency 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." Id. at 2114.

210. See id. at 2113.

211. See id.

212. See id. at 2117.

213. See MCDONALD & POWELL, supra note 1, at 240 ("These race conscious strategies recognize that for generations minorities have been denied an opportunity to participate as equals in the political, social, cultural, and economic life of this country."); Rosenfeld, supra note 192, at 1788-91.

214. Rosenfeld, supra note 192, at 1788. Here "`innocent' whites" represent those non-minorities who did not consciously engage in discrimination, but because of preferential treatment for minorities, are harmed in that "they are deprived of goods which they otherwise would have obtained." Id.

215. Adarand, 115 S. Ct. at 2102; see also supra notes 204-06 and accompanying text.

216. Rosenfeld, supra note 192, at 1789.

217. Id. ("Compensatory affirmative action . . . is not meant to deprive whites of equal respect. The intent behind racial discrimination is exclusionary while that behind compensatory affirmative action is inclusionary, as it seeks to integrate the victims of racism into the mainstream of society." (footnotes omitted)); see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 316-17 (1986) (Stevens, J., dissenting), cited in Rosenfeld, supra note 192, at 1789 n.244 (discussing the distinguishing features between exclusionary and inclusionary uses of race, and how they pertain to the equal protection clause).

218. Rosenfeld, supra note 192, at 1789.

219. Id. at 1789-90 (footnotes omitted). This view was espoused by Justice Brennan in his Bakke concurrence when he noted that the rejection of Bakke from medical school would not "`affect him throughout his life the same way as the segregation of the Negro school children in Brown I would have [been affected].'" Id. at 1790 n.245 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 375 (1978) (Brennan, J., concurring in part and dissenting in part)).

220. Id. at 1790.

221. Id.

222. Id. (footnote omitted).

223. Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2133 (1995) (Souter, J., dissenting).

224. Id. at 2134 (Souter, J., dissenting).

225. Id. (Souter, J., dissenting).

226. See id. (Souter, J., dissenting). Justice Powell, in his concurring opinion in Fullilove, noted that "[t]he temporary nature of this [race-based] remedy ensures that a race-conscious program will not last longer than the discriminatory effects it is designed to eliminate." Fullilove v. Klutznick, 448 U.S. 448, 513 (1980) (Powell, J., concurring), quoted in Adarand, 115 S. Ct. at 2134 (Souter, J., dissenting).

227. See Adarand, 115 S. Ct. at 2118 (Scalia, J., concurring in part and concurring in the judgment); see also id. at 2119 (Thomas, J., concurring in part and concurring in the judgment); supra notes 160-67 and accompanying text.

228. Adarand, 115 S. Ct. at 2118 (Scalia, J., concurring in part and concurring in the judgment). Justice Scalia noted that "under our Constitution there can be no such thing as either a creditor or debtor race. That concept is alien to the Constitution's focus on the individual." Id. (Scalia, J., concurring in part and concurring in the judgment).

229. Id. at 2119 (Scalia, J., concurring in part and concurring in the judgment).

230. See Rosenfeld, supra note 192, at 1755-56.

231. Id. at 1755.

232. Id. at 1755-56 (citing Keyes v. School Dist. No. 1, 413 U.S. 189 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Green v. County Sch. Bd., 391 U.S. 430 (1968)).

233. Spann, supra note 2, at 139 ("Only a culture in which the issue of race never even entered the conscious contemplation of social policymakers could claim to be capable of colorblind race neutrality. That is not our culture.").

234. See id.

235. Id. at 139-40.

236. See id. at 140.

237. Id. This reasoning is based on the following:

Because unspoken racial considerations will continue to motivate the manner in which major societal decisions are made, a judicial prohibition on explicitly race-conscious efforts to counteract that tacit race-consciousness serves only to protract the present allocation of resources--an allocation under which the majority benefits at the expense of racial minority interests. . . . Our only choice is between allocating a resource to the white majority or allocating it to a racial minority. When a resource is allocated to a racial minority, we call the process affirmative action. When that same resource is allocated to the white majority, we call it colorblind race neutrality. The only difference between the two, however, is the recipient of the resource. Both are equally race-conscious, but only affirmative action threatens the socio-economic status quo.

Id. at 139-40.

238. Adarand, 115 S. Ct. 2097, 2119 (1995) (Thomas, J., concurring in part and concurring in the judgment). Justice Thomas, like Justice Scalia, maintains that the "[g]overnment cannot make us equal; it can only recognize, respect, and protect us as equal before the law." Id. (Thomas, J., concurring in part and concurring in the judgment); see also supra notes 163-67 and accompanying text.

239. Adarand, 115 S. Ct. at 2119 (Thomas, J., concurring in part and concurring in the judgment) ("So-called benign discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence.").

240. Id. (Thomas, J., concurring in part and concurring in the judgment); see also Ronald Dworkin, DeFunis v. Sweatt, in Equality and Preferential Treatment 63, 64 (Marshall Cohen et al. eds., 1977) ("Some educators argue that benign quotas are ineffective, even self-defeating, because preferential treatment will reinforce the sense of inferiority that many blacks already have.").

241. See Adarand, 115 S. Ct. at 2119 (Thomas, J., concurring in part and concurring in the judgment).

242. Id. (Thomas, J., concurring in part and concurring in the judgment).

243. See id. at 2123 (Stevens, J., dissenting).

244. See id. at 2122 n.5 (Stevens, J., dissenting).

245. Id.

246. See id. (Stevens, J., dissenting).

247. Adarand, 115 S. Ct. at 2123 n.5 (Stevens, J., dissenting); see also supra notes 168-80 and accompanying text.

248. See Adarand, 115 S. Ct. at 2123 n.5 (Stevens, J., dissenting).

249. 476 U.S. 267, 316 (1986) (Stevens, J., dissenting); see also supra notes 57-62 and accompanying text.

250. Wygant, 476 U.S. at 316 (Stevens, J., dissenting) (quoting Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 452 (1985) (Stevens, J. concurring)).

251. See Adarand, 115 S. Ct. at 2123 n.5 (Stevens, J., dissenting).

252. See Constitutional Law Conference Probes Impact of Supreme Court's 1994-95 Term, 64 U.S.L.W. 2225, 2244 (U.S. Oct. 24, 1995) [hereinafter Constitutional Law Conference].

253. See id.; see also supra notes 167-87 and accompanying text.

254. Constitutional Law Conference, supra note 252, at 2244.

255. Id.

256. See id.; see also Adarand, 115 S. Ct. at 2131-34 (Souter, J., dissenting).

257. See Adarand, 115 S. Ct. at 2131-32 (Souter, J., dissenting). Justice Souter noted that Fullilove should have been followed under the doctrine of stare decisis because the petitioners in Adarand did not attack the shared grounds of the Fullilove decision which acknowledged "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 Amendment." Id. at 2132 (Souter, J., dissenting) (footnote omitted).

258. Id. at 2132 (Souter, J., dissenting). This view was also shared by Justice Stevens in his dissent. See id. at 2128 (Stevens, J., dissenting).

259. Constitutional Law Conference, supra note 252, at 2244; see also Adarand, 115 S. Ct. at 2133 (Souter, J., dissenting). Justice O'Connor acknowledged that:

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. . . . We need not, and do not, address these differences today.

Id. at 2114.

260. Adarand, 115 S. Ct. at 2133 (Souter, J., dissenting).

261. See id. (Souter, J., dissenting). There is a paradox in this reasoning, however, because it must be determined just how and what kind of deference can be given to Congress in this area when the Court will continue to evaluate these programs with the strict scrutiny standard. See Constitutional Law Conference, supra note 252, at 2244. One commentator suggests:

Resolution might depend on what is meant by "deference." Deference might focus narrowly on the specificity and timing of hearings prior to enactment of a statute . . . . Maybe Congress can draw on hearings of previous Congresses or of committees. Maybe, too, Congress can use national statistics in order to impose a nationwide rule, in contrast to Croson's requirement of specific hearings and findings before imposition of a racial classification at the local level.

Id.

262. See Constitutional Law Conference, supra note 252, at 2244 ("Under the ultimate level of deference, Congress' judgment that it wants to remedy nationwide societal discrimination would itself be a compelling state interest that satisfies strict scrutiny. If this is the case, Adarand's raising of the level of scrutiny is effectively meaningless . . . .").

263. See id.

264. Id.

265. See Adarand, 115 S. Ct. at 2117.

266. See Constitutional Law Conference, supra note 252, at 2244-45; see also Metro Broad., Inc. v. FCC, 497 U.S. 547, 607-08 (1990); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 509-11 (1989) (O'Connor, J., for a plurality). Justice O'Connor has also indicated that she would allow racial classifications as a "`plus'" (a remedy) when there is under-representation. Constitutional Law Conference, supra note 252, at 2244. It has been noted that:

In separate opinions in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), and in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987), [Justice O'Connor] said that voluntary affirmative action programs in employment, when persons for reasons of race, ethnicity, or gender have been substantially under-represented, are to be strongly encouraged and that such programs are valid if the government agency enacting the program has a strong basis to believe that it is remedying its own identified discrimination.

Id. at 2244.

267. Adarand, 115 S. Ct. at 2117 (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in the judgment) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978) (Brennan, J., concurring in the judgment in part and dissenting in part) (quoting Gerald Gunther, The Supreme Court 1971 Term--Foreward: In Search of a Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972)))).

268. See id. at 2132 (Souter, J., dissenting) ("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.").

269. See Constitutional Law Conference, supra note 252, at 2244.

270. See Metro Broad., 497 U.S. at 602.

271. See Constitutional Law Conference, supra note 252, at 2244; see also supra notes 164-68 and accompanying text.

272. Constitutional Law Conference, supra note 252, at 2244; see also supra Part III.A.

273. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2121 n.1 (1995) (Stevens, J., dissenting).

274. Id. (Stevens, J., dissenting).

275. See id. at 2122 (Stevens, J., dissenting).

276. Id. (Stevens, J., dissenting).

277. Id. (Stevens, J., dissenting).

278. See supra Part IV.C.

279. See Constitutional Law Conference, supra note 252, at 2244; see also supra Part IV.C.

* Dedicated with love to my mother, my sister, Jennifer, and the Marjani family. Thank you for all your support and understanding over the years.