Adarand V

Adarand v. Pena

1. What constitutional issue is raised in the Adarand litigation?
The issue is an affirmative action case that make its way to the U.S. Supreme Court. The court was being asked to decide whether categorizing citizens by race in order to determine the kind of treatment those individuals would receive was constitutional or not. This is not something new to be tried within the United States Supreme Court system. Attorneys for each side of the Adarand v. Pena case presented to the court, but ultimately the court would make no decision on it, in the end.
2. After the Supreme Court’s 1995 decision in Adarand v Pena what requirements did an affirmative action program have to meet to be constitutional?
The Supreme Court held that the plan was a race classification and presumed to be unconstitutional unless it was "narrowly tailored" to meet a "compelling government interest."
President Bill Clinton promised to “mend, not end” affirmative action after the Adarand decision sparked a national debate. The Constitution was getting heat for being “color-blind” and for “trampling the constitutional rights of countless innocent individuals.”
3. Was the decision of the Court majority correct? Why or why not?
Because the Supreme Court elected to decide principles of the law and not decide if the subcontractor compensation was constitutional; it sent the case down to the Tenth Circuit. The Tenth Circuit in turn sent it down to the originator of the case.
In 1997, almost two years after the Supreme Court's decision, the district court issued an opinion. Judge John L. Kane Jr. applied the strict scrutiny test to the subcontractor compensation clause, and the result invalidated the clause. The clause passed the part of the test requiring the government to show a compelling interest. However, the clause failed the test of narrow tailoring. Judge Kane held that basing social and economic disadvantage solely on race was unfair.
The reason: Under the existing criteria for selecting DBEs, a multimillionaire who immigrated from Hong Kong and became a U.S. citizen one day before applying would automatically qualify, but a poor white man who had lived in the United States his entire life could not.
4. In a concurring opinion, Justice Scalia said that race classifications by government were never legitimate. In dissenting opinions, Justices Stevens, Souter, and Ginsburg argued that race-conscious remedies were justified. What were their arguments? With whom do you agree? Why?
Three separate dissenting opinions were written, joined in by four justices.

● First dissenting opinion = Justice Stevens, joined by Justice Ginsburg, objected to the departure of the majority from established precedent. They argued that the Court had a duty to uphold the intermediate scrutiny standard.
● Second dissenting opinion = Justice Souter, joined by Justices Ginsburg and Breyer, objected to the Court’s departure from theh Fullilove and Metro precedents. They argued the need for laws to address persistent racism.
● Third dissenting opinion = Justice Ginsburg, joined by Justice Breyer, addressed the lingering effects of a “system of racial cast” in American life.
Noone should be discriminated against based on their skin color and/or race. We have traveled a long distance in United States history but we still have a ways to go.
5. Following Adarand v Pena, the district court held that the affirmative action program in federal highway contracts was unconstitutional. Do you agree with this decision? Why or why not?
We disagree with the logic behind this example. Most cases that reflect the situation of a minority are not those of a wealthy immigrant. It appeared to us that there were probably preconceived notions of the judge that came to those opinions, which affected the results.
6. Do you believe that the Department of Transportation’s current rules for helping DBEs get highway construction contracts pass the strict scrutiny requirement?
While the Adarand decision lives on, making affirmative action in government contracting harder to justify, minority contractors continue to struggle. They struggle because they do not have the available resources as some of their larger competitors. We feel set-asides are important and necessary to ensure a well-rounded economic harmony within today’s world. Some will argue that set-asides are unfair, but they are necessary to ensure all are able to compete on some-level.