Adarand Constructors, Inc. v. Pena

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Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), was a decision by the U.S. Supreme Court holding government affirmative action programs to an exacting "strict scrutiny" that requires invalidating them unless justified to remedy past discrimination.


The case arose out of a 1989 United States Department of Transportation highway construction contract in Colorado, awarded to prime contractor Mountain Gravel and Construction Company. The contract (typical of the time, and still common today) contained numerous incentives for the contractor to subcontract work to "disadvantaged businesses" (usually classified on the basis of race; such businesses would be certified by the Small Business Administration as such).

Mountain Gravel then solicited subcontracts for guardrails. Adarand was the lowest bidder, but was not a "disadvantaged business", and therefore was bypassed in favor of the next lowest bidder, Gonzales Construction who was certified as such. Adarand thus filed suit against the Department of Transportation, claiming that the incentive clause was unconstitutional on the basis of race. Both the Federal District Court and the Circuit Court of Appeals ruled against Adarand.


The Court ruled 5–4 in favor of Adarand. Justice O'Connor wrote the opinion for the majority (which included Chief Justice Rehnquist and Justices Kennedy, Scalia, and Thomas; the latter two also wrote separate concurring opinions) while the dissenting Justices wrote three opinions between them (Justice Stevens joined by Justice Ginsburg, Justice Souter joined by Justices Ginsburg and Breyer, and Justice Ginsburg joined by Justice Breyer).

Its central ruling was that the Equal Protection Clause "protects persons, not groups."[1] The Court observed, "All governmental action based on race -- a group classification long recognized as 'in most circumstances irrelevant and therefore prohibited,' Hirabayashi [v. United States, 320 U.S. 81, 100, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943)] -- should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed."[2]

This decision overruled Metro Broadcasting v FCC, 497 U.S. 547 (1990).


  1. 515 U.S. at 227
  2. Ibid.