adarand constructors pena argued january decided june federal agency contracts must contain subcontractor compensation clause gives prime contractor financial incentive hire subcontractors certified small businesses controlled socially economically disadvantaged individuals requires contractor presume individuals include minorities individuals found disadvantaged small business administration sba prime contractor federal highway construction contract containing clause awarded subcontract company certified small disadvantaged business record reveal company obtained certification one three routes one two sba programs known programs state agency relevant department transportation regulations petitioner adarand constructors submitted low bid subcontract certified business filed suit respondent federal officials claiming presumptions used subcontractor compensation clauses violate equal protection component fifth amendment due process clause district granted respondents summary judgment affirming appeals assessed constitutionality federal action lenient standard resembling intermediate scrutiny determined required fullilove klutznick metro broadcasting fcc held judgment vacated case remanded vacated remanded justice delivered opinion respect parts page ii ii iv except insofar might inconsistent views expressed justice scalia concurrence concluding adarand standing seek relief met requirements necessary maintain claim alleging invasion legally protected interest particularized manner showing likely bid relatively near future another government contract offering financial incentives prime contractor hiring disadvantaged subcontractors see lujan defenders wildlife pp racial classifications imposed whatever federal state local governmental actor must analyzed reviewing strict scrutiny pp richmond croson majority held fourteenth amendment requires strict scrutiny action state local governments croson consider standard review fifth amendment requires action taken federal government cases croson established three general propositions respect governmental racial classifications first skepticism ny preference based racial ethnic criteria must necessarily receive searching examination wygant jackson board second consistency standard review equal protection clause dependent race burdened benefited particular classification croson supra third congruence qual protection analysis fifth amendment area fourteenth amendment buckley valeo taken together propositions lead conclusion person whatever race right demand governmental actor subject constitution justify racial classification subjecting person unequal treatment strictest judicial scrutiny pp however year croson metro broadcasting upheld two federal policies fifth amendment challenge repudiated notion unthinkable constitution impose lesser duty federal government state afford equal protection laws bolling sharpe holding congressionally mandated benign racial classifications need satisfy intermediate scrutiny adopting standard metro broadcasting departed prior cases two significant respects first turned back croson explanation strict scrutiny governmental racial classifications page iii essential may always clear preference fact benign second squarely rejected one three propositions established earlier cases namely congruence standards applicable federal state action also undermined two pp propositions undermined metro broadcasting derive basic principle fifth fourteenth amendments protect persons groups follows principle governmental action based race group classification long recognized circumstances irrelevant therefore prohibited subjected detailed judicial inquiry ensure personal right equal protection infringed thus strict scrutiny proper standard analysis racial classifications whether imposed federal state local actor extent metro broadcasting inconsistent holding overruled pp decision makes explicit federal racial classifications like state must serve compelling governmental interest must narrowly tailored interest thus extent fullilove held federal racial classifications subject less rigorous standard longer controlling requiring strict scrutiny best way ensure courts consistently give racial classifications detailed examination ends means true strict scrutiny strict theory fatal fact government disqualified acting response unhappy persistence practice lingering effects racial discrimination minority groups country action necessary compelling interest action within constitutional constraints satisfies narrow tailoring test set previous cases pp decision alters playing field important respects case remanded lower courts consideration appeals decide whether interests served use subcontractor compensation clauses properly described compelling address question narrow tailoring terms strict scrutiny cases unresolved questions also remain concerning details complex regulatory regimes implicated use clauses pp justice scalia agreed strict scrutiny must applied racial classifications imposed governmental actors concluded government never compelling interest page iv discriminating basis race order make past racial discrimination opposite direction constitution thing either creditor debtor race one race eyes government pp adarand constructors pena justice announced judgment delivered opinion respect parts ii iv except insofar might inconsistent views expressed justice scalia concurrence opinion respect part justice kennedy joins petitioner adarand constructors claims federal government practice giving general contractors government projects financial incentive hire subcontractors controlled socially economically disadvantaged individuals particular government use presumptions identifying individuals violates equal protection component fifth amendment due process clause appeals rejected adarand claim conclude however courts analyze cases kind different standard review one appeals applied therefore vacate appeals judgment remand case proceedings adarand constructors pena prime contract terms provide mountain gravel receive additional compensation hired subcontractors certified small businesses controlled socially economically disadvantaged individuals app gonzales certified business adarand mountain gravel awarded subcontract gonzales despite adarand low bid mountain gravel chief estimator submitted affidavit stating mountain gravel accepted adarand bid additional payment received hiring gonzales instead federal law requires subcontracting clause similar one used must appear federal agency contracts also requires clause state contractor shall presume socially economically disadvantaged individuals include black americans hispanic americans native americans asian pacific americans minorities individual found disadvantaged small business administration pursuant section small business act adarand claims presumption set forth statute discriminates basis race violation federal government fifth amendment obligation deny anyone equal protection laws adarand constructors pena fairly straightforward facts implicate complex scheme federal statutes regulations turn small business act stat amended et seq act declares policy small business concerns small business concerns owned controlled socially economically disadvantaged individuals shall maximum practicable opportunity participate performance contracts let federal agency act defines socially disadvantaged individuals subjected racial ethnic prejudice cultural bias identity member group without regard individual qualities defines economically disadvantaged individuals socially disadvantaged individuals whose ability compete free enterprise system impaired due diminished capital credit opportunities compared others business area socially disadvantaged furtherance policy stated act establishes goal participation small business concerns owned controlled socially economically disadvantaged individuals less percent total value prime contract subcontract awards fiscal year also requires head federal agency set goals participation businesses controlled socially economically disadvantaged individuals ibid small business administration sba implemented statutory directives variety ways two relevant one program available small businesses controlled socially economically disadvantaged adarand constructors pena individuals sba defined terms program confers wide range benefits participating businesses see cfr cfr subpt one automatic eligibility subcontractor compensation provisions kind issue case conferring presumptive eligibility anyone found disadvantaged pursuant section small business act participate program business must small defined cfr must owned individuals qualify socially economically disadvantaged sba presumes black hispanic asian pacific subcontinent asian native americans well members groups designated time time sba socially disadvantaged also allows individual member listed group prove social disadvantage basis clear convincing evidence described social disadvantage enough establish eligibility however sba also requires program participant prove economic disadvantage according criteria set forth sba program relevant case subcontracting program unlike program limited eligibility subcontracting provisions like one issue determining eligibility sba presumes social disadvantage based membership certain minority groups program appears require individualized although less restrictive showing economic disadvantage different set regulations however says members minority groups wishing participate subcontracting program entitled presumption social economic disadvantage cfr adarand constructors pena left uncertainty whether participation subcontracting program requires individualized showing economic disadvantage event programs presumptions disadvantage rebuttable third party comes forward evidence suggesting participant fact either economically socially disadvantaged cfr contract giving rise dispute case came result surface transportation uniform relocation assistance act pub stat sturaa dot appropriations measure section sturaa provides less percent appropriated funds shall expended small business concerns owned controlled socially economically disadvantaged individuals stat sturaa adopts small business act definition socially economically disadvantaged individual including applicable presumptions adds women shall presumed socially economically disadvantaged individuals purposes subsection stat sturaa also requires secretary transportation establish minimum uniform criteria state governments use certifying whether concern qualifies purposes subsection stat secretary done cfr pt subpt regulations say certifying authority presume social economic disadvantage eligibility participate applicant belongs certain racial groups woman cfr cfr pt subpt app sba programs third parties may come forward evidence effort rebut presumption adarand constructors pena disadvantage particular business cfr operative clause contract case reads follows subcontracting subsection supplemented include disadvantaged business enterprise dbe development subcontracting provision follows monetary compensation offered awarding subcontracts small business concerns owned controlled socially economically disadvantaged individuals small business concern considered dbe certified small business administration state highway agency certification government agencies counties cities may acceptable individual basis provided contracting officer determined certifying agency acceptable viable dbe certification program contractor requests payment provision contractor shall furnish engineer acceptable evidence subcontractor dbe certification shall furnish one certified copy executed subcontract contractor paid amount computed follows subcontract awarded one dbe percent final amount approved dbe subcontract exceed percent original contract amount subcontracts awarded two dbes percent final amount approved dbe subcontracts exceed percent original contract amount app adarand constructors pena losing guardrail subcontract gonzales adarand filed suit various federal officials district district colorado claiming presumptions involved use subcontracting compensation clauses violate adarand right equal protection district granted government motion summary judgment adarand constructors skinner supp appeals tenth circuit affirmed understood decision fullilove klutznick adopted lenient standard resembling intermediate scrutiny assessing constitutionality federal action applying lenient standard developed metro broadcasting fcc appeals upheld use subcontractor compensation clauses granted certiorari ii adarand constructors pena adarand maintain claim relief cases require allege use subcontractor compensation clauses future constitutes invasion legally protected interest concrete particularized actual imminent conjectural hypothetical lujan defenders wildlife citations internal quotation marks omitted adarand claim government use subcontractor compensation clauses denies equal protection laws course alleges invasion legally protected interest manner particularized adarand note contrary respondents suggestion see brief respondents adarand need demonstrate low bidder government contract injury cases kind discriminatory classification prevent plaintiff competing equal footing general contractors jacksonville slip aggrieved party need allege obtained benefit barrier order establish standing slip less clear however future use subcontractor compensation clauses cause adarand imminent adarand constructors pena injury said lujan lthough imminence concededly somewhat elastic concept stretched beyond purpose insure alleged injury speculative article iii purposes injury certainly impending lujan supra therefore must ask whether adarand made adequate showing sometime relatively near future bid another government contract offers financial incentives prime contractor hiring disadvantaged subcontractors conclude adarand satisfied requirement adarand general manager said deposition company bids every guardrail project colorado see reply brief petitioner according documents produced discovery cflhd let fourteen prime contracts colorado included guardrail work plaintiff motion summary judgment exh attachment two contracts present kind injury adarand alleges one prime contractor subcontract guardrail work another prime contractor disadvantaged business cases contract generally include subcontractor compensation clause ibid see also supplemental exhibits deposition craig actis testimony cflhd employee contracts include subcontractor compensation clauses thus statistics years indicate cflhd lets average one one half contracts per year injure adarand manner alleges nothing record suggests cflhd altered frequency lets contracts include guardrail work record indicates adarand often must compete contracts companies certified small disadvantaged businesses adarand constructors pena see exh attachments evidence case indicates cflhd likely let contracts involving guardrail work contain subcontractor compensation clause least per year colorado adarand likely bid contract adarand often must compete contracts small disadvantaged businesses satisfied adarand standing bring lawsuit iii adarand claim arises fifth amendment constitution provides person shall deprived life liberty property without due process law although always understood clause provide measure protection arbitrary treatment federal adarand constructors pena government explicit guarantee equal treatment fourteenth amendment provides state shall deny person within jurisdiction equal protection laws emphasis added cases accorded varying degrees significance difference language two clauses think necessary revisit issue adarand constructors pena eighteen months later approved wartime measures directed persons japanese ancestry korematsu concerned order completely excluded persons particular areas address view expressed cases like hirabayashi detroit bank federal government obligation provide equal protection differs significantly instead began noting legal restrictions curtail civil rights single racial group immediately suspect courts must subject rigid scrutiny promising dictum might read undermine view federal government lesser obligation avoid injurious racial classifications cf murphy dissenting order deprives within scope equal protection laws guaranteed fifth amendment spite rigid scrutiny standard set forth inexplicably relied principles announced hirabayashi case conclude although exclusion area one home located far greater deprivation constant confinement home racially discriminatory order nonetheless within federal government power adarand constructors pena bolling sharpe first time explicitly questioned existence difference obligations federal government avoid racial classifications bolling note equal protection laws explicit safeguard prohibited unfairness due process law bolling concluded view decision constitution prohibits maintaining racially segregated public schools unthinkable constitution impose lesser duty federal government bolling facts concerned school desegregation reasoning limited observations istinctions citizens solely ancestry nature odious hirabayashi legal restrictions curtail civil rights single racial group immediately suspect korematsu carry less force context federal action context action indeed first appeared cases concerning action federal government bolling relied observations reiterated constitution present form forbids far civil political rights concerned discrimination general government citizen race quoting gibson mississippi emphasis added application general principle case adarand constructors pena resulting imposition federal government obligation equivalent followed matter course later cases contexts school desegregation distinguish duties federal government avoid racial classifications consider example following passage mclaughlin florida case struck state law deal classification based upon race participants must viewed light historical fact central purpose fourteenth amendment eliminate racial discrimination emanating official sources strong policy renders racial classifications constitutionally suspect bolling sharpe subject rigid scrutiny korematsu circumstances irrelevant constitutionally acceptable legislative purpose hirabayashi cases decided mclaughlin continued treat equal protection obligations imposed fifth fourteenth amendments indistinguishable one commentator observed case case fifth amendment equal protection problems discussed assumption fourteenth amendment precedents controlling karst fifth amendment guarantee equal protection rev loving virginia struck adarand constructors pena state law cited korematsu proposition equal protection clause demands racial classifications subjected rigid scrutiny various opinions frontiero richardson concerned sex discrimination federal government took equal protection standard review reed reed case invalidated sex discrimination state without mentioning possibility difference standards applicable state federal action frontiero plurality opinion brennan stewart concurring judgment powell concurring judgment thus stated explicitly approach fifth amendment equal protection claims always precisely equal protection claims fourteenth amendment weinberger wiesenfeld see also buckley valeo equal protection analysis fifth amendment area fourteenth amendment paradise plurality opinion brennan reach equal protection guarantee fifth amendment coextensive fourteenth understand contrary suggestions appearing cases found special deference political branches federal government appropriate hampton mow sun wong federal power immigration detract general rule adarand constructors pena two years bakke faced another challenge remedial action time involving action undertaken federal government fullilove klutznick upheld congress inclusion businesses public works employment act bakke opinion adarand constructors pena chief justice burger opinion joined justices white powell observed ny preference based racial ethnic criteria must necessarily receive searching examination make sure conflict constitutional guarantees opinion however id adopt either expressly implicitly formulas analysis articulated cases bakke employed instead test asked first whether objectives th legislation within power congress second whether limited use racial ethnic criteria context presented constitutionally permissible means achieving congressional objectives upheld program test adding end opinion program also survive judicial review either test articulated several bakke opinions justice powell wrote separately express view plurality opinion essentially applied strict scrutiny described bakke opinion determined necessary means advancing compelling governmental interest done correctly concurring opinion justice stewart joined rehnquist dissented arguing constitution required federal government meet strict standard enacting racial classifications program failed standard justice stevens also dissented arguing acial classifications simply pernicious permit exact connection justification classification program characterized narrowly tailored remedial measure justice marshall joined justices brennan blackmun concurred adarand constructors pena judgment reiterating view four justices bakke governmental action designed remed present effects past racial discrimination upheld substantially related achievement important governmental objective action subjected call intermediate scrutiny wygant jackson board considered fourteenth amendment challenge another form remedial racial classification issue wygant whether school board adopt preferences determining teachers lay justice powell plurality opinion observed level scrutiny change merely challenged classification operates group historically subject governmental discrimination stated inquiry whether layoff provision supported compelling state purpose whether means chosen accomplish purpose narrowly tailored words racial classifications sort must subjected strict scrutiny concurring part concurring judgment plurality concluded school board interest providing minority role models minority students attempt alleviate effects societal discrimination compelling interest justify use racial classification added ocietal discrimination without amorphous basis imposing racially classified remedy insisted instead public employer must ensure embarks program convincing evidence remedial action warranted must sufficient evidence justify conclusion adarand constructors pena prior discrimination justice white concurred judgment although agreed school board asserted interests singly together justify racially discriminatory layoff policy four justices dissented three argued intermediate scrutiny remedial government action marshall joined brennan blackmun dissenting failure produce majority opinion bakke fullilove wygant left unresolved proper analysis remedial governmental action see paradise plurality opinion brennan lthough consistently held elevated level scrutiny required racial ethnic distinction made remedial purposes yet reach consensus appropriate constitutional analysis sheet metal workers eeoc plurality opinion brennan lower courts found lack guidance unsettling see kromnick school dist philadelphia absence opinion either bakke fullilove concomitant failure articulate analytic framework supporting judgments makes position lower federal courts considering constitutionality affirmative action programs somewhat vulnerable cert denied williams new orleans en banc higginbotham concurring specially south florida chapter associated general contractors america metropolitan dade county cert denied resolved issue least part richmond croson concerned city determination contracting adarand constructors pena work go businesses majority croson held standard review equal protection clause dependent race burdened benefited particular classification single standard review racial classifications strict scrutiny opinion joined rehnquist white kennedy jj scalia concurring judgment agree justice conclusion strict scrutiny must applied governmental classification race classification plurality agreed state local subdivision authority eradicate effects private discrimination within legislative jurisdiction thought city acted strong basis evidence conclusion remedial action necessary majority opinion quoting wygant supra plurality opinion also thought obvious program narrowly tailored remedy effects prior discrimination croson finally agreed fourteenth amendment requires strict scrutiny action state local governments croson course occasion declare standard review fifth amendment requires action taken federal government croson observed simply treatment exercise congressional power fullilove dispositive croson facts implicate congress broad power fourteenth amendment croson plurality opinion see also scalia concurring judgment ithout revisiting held fullilove believe decision case controls one us hand adarand constructors pena subsequently indicated croson least bearing federal action vacated decision upholding action remanded consideration light croson porter metropolitan dade county see also shurberg broadcasting hartford fcc cadc opinion silberman noting action porter rev sub nom metro broadcasting fcc thus uncertainty persisted respect standard review federal racial classifications see mann city albany croson may applicable classifications imposed congress shurberg supra noting difficulty extracting general principles fractured opinions wald dissenting denial rehearing en banc croson certainly resolve substantial questions posed congressional programs mandate use racial preferences winter park communications fcc cadc williams concurring part dissenting part unresolved ambiguity fullilove croson leaves impossible reach firm opinion evidence discrimination needed sustain congressional mandate racial preferences aff sub nom metro broadcasting supra despite lingering uncertainty details however cases croson established three general propositions respect governmental racial classifications first skepticism ny preference based racial ethnic criteria must necessarily receive searching examination wygant plurality opinion powell fullilove opinion burger see also stewart dissenting ny official action treats person differently account race adarand constructors pena ethnic origin inherently suspect mclaughlin acial classifications constitutionally suspect hirabayashi distinctions citizens solely ancestry nature odious free people second consistency standard review equal protection clause dependent race burdened benefited particular classification croson plurality opinion scalia concurring judgment see also bakke opinion powell racial classifications reviewable equal protection clause must strictly scrutinized third congruence qual protection analysis fifth amendment area fourteenth amendment buckley valeo see also weinberger wiesenfeld bolling sharpe taken together three propositions lead conclusion person whatever race right demand governmental actor subject constitution justify racial classification subjecting person unequal treatment strictest judicial scrutiny justice powell defense conclusion bears repeating individual entitled judicial protection classifications based upon racial ethnic background distinctions impinge upon personal rights rather individual membership particular group constitutional standards may applied consistently political judgments regarding necessity particular classification may weighed constitutional balance korematsu standard justification remain constant since political judgments product rough adarand constructors pena compromise struck contending groups within democratic process touch upon individual race ethnic background entitled judicial determination burden asked bear basis precisely tailored serve compelling governmental interest constitution guarantees right every person regardless background shelley kraemer bakke opinion powell omitted adarand constructors pena applying test first noted fcc policies issue serve remedy past discrimination proceeding assumption policies nonetheless benign concluded served important governmental objective enhancing broadcast diversity substantially related objective therefore upheld policies adopting intermediate scrutiny standard review congressionally mandated benign racial classifications metro broadcasting departed prior cases two significant respects first turned back croson explanation strict scrutiny governmental racial classifications essential absent searching judicial inquiry justification measures simply way determining classifications benign remedial classifications fact motivated illegitimate notions racial inferiority simple racial politics indeed purpose strict scrutiny smoke illegitimate uses race assuring legislative body pursuing goal important enough warrant use highly suspect tool test also ensures means chosen fit compelling goal closely little possibility motive classification illegitimate racial prejudice stereotype croson supra plurality opinion adarand constructors pena second metro broadcasting squarely rejected one three propositions established earlier equal protection cases namely congruence standards applicable federal state racial classifications also undermined two skepticism racial classifications consistency treatment irrespective race burdened benefited group see supra metro broadcasting certain racial classifications benign ones enacted federal government treated less skeptically others race benefited group critical determination standard review apply metro broadcasting thus significant departure much come three propositions undermined metro broadcasting derive basic principle fifth fourteenth amendments constitution protect persons groups follows principle governmental action based race group classification long recognized circumstances irrelevant therefore prohibited hirabayashi supra subjected detailed judicial inquiry ensure personal right equal protection laws infringed ideas long central understanding equal protection holding benign state federal racial classifications different standards square free people whose institutions founded upon doctrine equality tolerate retreat principle government may treat people differently race compelling reasons accordingly hold today racial classifications imposed whatever federal state local governmental actor must adarand constructors pena analyzed reviewing strict scrutiny words classifications constitutional narrowly tailored measures compelling governmental interests extent metro broadcasting inconsistent holding overruled dissent justice stevens criticizes us deliver ing disconcerting lecture evils governmental racial classifications post respect believe criticisms reflect serious misunderstanding opinion justice stevens concurs view courts take skeptical view governmental racial classifications post also allows othing inherently wrong applying single standard fundamentally different situations long standard takes relevant differences account post fails recognize strict scrutiny take relevant differences account indeed fundamental purpose point carefully examining interest asserted government support racial classification evidence offered show classification needed precisely distinguish legitimate illegitimate uses race governmental decisionmaking see supra justice stevens concedes cases may difficult classify post reason view examine racial classifications carefully strict scrutiny trea dissimilar decisions though equally objectionable post contrary evaluates carefully governmental decisions order decide constitutionally objectionable requiring strict scrutiny racial classifications require courts make sure governmental classification based race seldom provide relevant basis adarand constructors pena disparate treatment fullilove supra stevens dissenting legitimate permitting unequal treatment based race proceed justice stevens chides us supposed inability differentiate invidious benign discrimination view sufficient people understand difference good intentions bad post explained point strict scrutiny differentiate permissible impermissible governmental use race justice stevens already explained dissent fullilove good intentions alone enough sustain supposedly benign racial classification ven though actual predicate legislation statute kind inevitably perceived many resting assumption granted special preference less qualified respect identified purely race perception especially fostered congress exacerbate rather reduce racial prejudice delay time race become truly irrelevant least insignificant factor unless congress clearly articulates need basis racial classification also tailors classification justification uphold kind statute fullilove supra dissenting opinion emphasis added omitted see also racial classifications simply pernicious permit exact connection justification classification croson supra stevens concurring part concurring judgment although legislation issue stigmatizes disadvantaged class unproven charge past racial discrimination actually imposes greater stigma supposed beneficiaries supra cf post stevens dissenting passages make adarand constructors pena persuasive case requiring strict scrutiny congressional racial classifications perhaps standard strict scrutiny use concepts consistency congruence conjunction leads justice stevens dissent according justice stevens view consistency equate remedial preferences invidious discrimination post ignores difference engine oppression effort foster equality society colorfully trespassing sign welcome mat post nothing kind principle consistency simply means whenever government treats person unequally race person suffered injury falls squarely within language spirit constitution guarantee equal protection says nothing ultimate validity particular law determination job applying strict scrutiny principle consistency explains circumstances injury requiring strict scrutiny occurs application strict scrutiny turn determines whether compelling governmental interest justifies infliction injury consistency recognize individual suffers injury disadvantaged government race whatever race may clearly stated principle croson see plurality opinion scalia concurring judgment see also shaw reno powers ohio justice stevens explain views square croson long line cases understanding equal protection personal right justice stevens also claims ignored difference federal state legislatures adarand constructors pena requiring congress like enact racial classifications necessary compelling interest contravene principle appropriate respect branch government true various members taken different views authority fourteenth amendment confers upon congress deal problem racial discrimination extent courts defer congress exercise authority see metro broadcasting supra dissenting croson supra opinion joined rehnquist white kennedy concurring part concurring judgment scalia concurring judgment fullilove supra opinion burger nn powell concurring stewart dissenting need address differences today enough observe justice stevens suggestion member repudiated case previously expressed views subject post incorrect although adherence precedent rigidly required constitutional cases departure doctrine stare decisis demands special justification arizona rumsey deciding whether case presents justification recall justice frankfurter admonition stare decisis principle policy mechanical formula adherence latest decision however recent questionable adherence involves collision prior doctrine embracing scope intrinsically sounder verified experience helvering hallock adarand constructors pena remaining true intrinsically sounder doctrine established prior cases better serves values stare decisis following recently decided case inconsistent decisions came latter course simply compound recent error likely make unjustified break previously established doctrine complete situation special justification exists depart recently decided case adarand constructors pena past practice similar situations supports action today dixon overruled recent case grady corbin grady lack ed constitutional roots wholly inconsistent earlier precedent dixon supra slip solorio overruled parker caused confusion rejected unbroken line decisions solorio supra continental gte sylvania overruled arnold schwinn abrupt largely unexplained departure precedent great weight scholarly opinion ha critical continental supra see also payne tennessee overruling booth maryland south carolina gathers monell new york city dept social services partially overruling monroe pape monroe departure prior practice engendered substantial reliance swift wickham overruling kesler department public safety utah adarand constructors pena reaffirm precedent restore law view traditionally taken older cases worth pointing difference applications stare decisis case planned parenthood southeastern casey casey explained considerations stare decisis inform decision whether overrule precedent become integrated fabric law overruling precedent kind naturally may consequences ideal rule law slip addition precedent likely engendered substantial reliance true casey slip two decades economic social developments people organized intimate relationships made choices define views places society reliance availability abortion event contraception fail case explained face precedent kind metro broadcasting departed prior cases quite recently refusing follow metro broadcasting depart fabric law restore also note reliance case recently departed precedent likely minimal particularly rule set forth case unlikely affect primary conduct event cf terminix dobson slip declining overrule southland keating private parties likely written contracts relying upon southland authority ten years since southland decided justice stevens takes us task perceives erroneous application doctrine stare decisis misunderstands position adarand constructors pena acknowledged croson uncertainty persisted respect standard review federal racial classifications supra therefore say merely restor status quo ante today post described supra think legal principles pointed toward conclusion different reached metro broadcasting therefore disagree justice stevens law time decision entirely open result reached post also disagree justice stevens justice stewart dissenting opinion fullilove supports novelty argument see post justice stewart said nder constitution official action treats person differently account race ethnic origin inherently suspect presumptively invalid qual protection analysis fifth amendment area fourteenth amendment fullilove supra took view hostility constitution racial classifications government manifested many cases decided cases made clear constitution wholly neutral forbidding racial discrimination whatever race may victims justice stewart gave indication thought addressing novel proposition post rather relied fact text fourteenth amendment extends guarantee persons cases like buckley loving mclaughlin bolling hirabayashi korematsu see fullilove supra today nothing new notion congress like may treat people differently race compelling reasons adarand constructors pena real problem justice frankfurter explained whether principle shall prevail later misapplications helvering metro broadcasting untenable distinction state federal racial classifications lacks support precedent undermines fundamental principle equal protection personal right case principle later misapplications principle must prevail action today makes explicit justice powell thought implicit fullilove lead opinion federal racial classifications like state must serve compelling governmental interest must narrowly tailored interest see fullilove concurring opinion recall lead opinion fullilove id adopt formulas analysis articulated cases bakke opinion burger course follows extent fullilove held federal racial classifications subject less rigorous standard longer controlling need decide today whether program upheld fullilove survive strict scrutiny recent cases defined questioned importance debating proper standard review legislation see post stevens dissenting croson stevens concurring part concurring judgment cf metro broadcasting dissenting dispute regarding appropriate standard review may strike lawyers quibble words agree justice stevens ecause racial characteristics seldom provide relevant basis disparate treatment classifications based adarand constructors pena race potentially harmful entire body politic especially important reasons classification clearly identified unquestionably legitimate acial classifications simply pernicious permit exact connection justification classification fullilove supra dissenting opinion footnotes omitted think requiring strict scrutiny best way ensure courts consistently give racial classifications kind detailed examination ends means korematsu demonstrates vividly even rigid scrutiny sometimes fail detect illegitimate racial classification compare korematsu cast case outlines racial prejudice without reference real military dangers presented merely confuses issue korematsu excluded military area hostility race pub stat hese actions relocating interning civilians japanese ancestry carried without adequate security reasons motivated largely racial prejudice wartime hysteria failure political leadership retreat searching judicial inquiry increase risk another error occurring future finally wish dispel notion strict scrutiny strict theory fatal fact fullilove supra marshall concurring judgment unhappy persistence practice lingering effects racial discrimination minority groups country unfortunate reality government disqualified acting response recently example every justice agreed alabama department public safety pervasive systematic obstinate discriminatory conduct justified narrowly tailored adarand constructors pena remedy see paradise plurality opinion brennan stevens concurring judgment dissenting action necessary compelling interest action within constitutional constraints satisfies narrow tailoring test set previous cases iv decision today alters playing field important respects think best remand case lower courts consideration light principles announced appeals following metro broadcasting fullilove analyzed case terms intermediate scrutiny upheld challenged statutes regulations found narrowly tailored achieve significant governmental purpose providing subcontracting opportunities small disadvantaged business enterprises emphasis added appeals decide question whether interests served use subcontractor compensation clauses properly described compelling also address question narrow tailoring terms strict scrutiny cases asking example whether consideration use means increase minority business participation government contracting croson supra whether program appropriately limited last longer discriminatory effects designed eliminate fullilove supra powell concurring moreover unresolved questions remain concerning details complex regulatory regimes implicated use subcontractor compensation clauses example sba program requires adarand constructors pena individualized inquiry economic disadvantage every participant see cfr whereas dot regulations implementing sturaa require certifying authorities make individualized inquiries see cfr cfr pt subpt app regulations seem unclear whether subcontractors must make individualized showings instead whether presumption applies social economic disadvantage compare cfr apparently requiring participants make individualized showing cfr apparently allowing subcontractors invoke presumption social economic disadvantage see generally part supra also note apparent discrepancy definitions socially disadvantaged individuals qualify economically disadvantaged programs former requires showing individuals ability compete impaired compared others similar line business socially disadvantaged cfr emphasis added latter requires showing compared others similar line business question whether ways government uses subcontractor compensation clauses survive strict scrutiny relevance distinctions may question addressed first instance lower courts accordingly judgment appeals vacated case remanded proceedings consistent opinion ordered justices roberts murphy jackson filed vigorous dissents justice murphy argued challenged order falls ugly abyss racism korematsu congress recently agreed dissenters position attempted adarand constructors pena make amends see pub stat congress recognizes grave injustice done citizens permanent resident aliens japanese ancestry evacuation relocation internment civilians world war ii adarand constructors pena justice scalia concurring part concurring judgment join opinion except part except insofar may inconsistent following view government never compelling interest discriminating basis race order make past racial discrimination opposite direction see richmond croson scalia concurring judgment individuals wronged unlawful racial discrimination made whole constitution thing either creditor debtor race concept alien constitution focus upon individual see amdt shall state deny person equal protection laws emphasis added rejection dispositions based race see amdt prohibiting abridgment right vote account race based blood see art iii attainder treason shall work corruption blood art title nobility shall granted pursue concept racial entitlement even admirable benign purposes reinforce preserve future adarand constructors pena mischief way thinking produced race slavery race privilege race hatred eyes government one race american unlikely impossible challenged program survive understanding strict scrutiny content leave decided remand adarand constructors pena justice thomas concurring part concurring judgment agree majority conclusion strict scrutiny applies government classifications based race write separately however express disagreement premise underlying justice stevens justice ginsburg dissents racial paternalism exception principle equal protection believe moral constitutional equivalence post stevens dissenting laws designed subjugate race distribute benefits basis race order foster current notion equality government make us equal recognize respect protect us equal law programs may motivated part good intentions provide refuge principle constitution government may make distinctions basis race far constitution concerned irrelevant whether government racial classifications drawn wish oppress race sincere desire help thought disadvantaged doubt paternalism adarand constructors pena appears lie heart program war principle inherent equality underlies infuses constitution see declaration independence hold truths men created equal endowed creator certain unalienable rights among life liberty pursuit happiness programs raise grave constitutional questions also undermine moral basis equal protection principle purchased price immeasurable human suffering equal protection principle reflects nation understanding classifications ultimately destructive impact individual society unquestionably nvidious racial discrimination engine oppression post also true emedial racial preferences may reflect desire foster equality society ibid doubt racial paternalism unintended consequences poisonous pernicious form discrimination benign discrimination teaches many chronic apparently immutable handicaps minorities compete without patronizing indulgence inevitably programs engender attitudes superiority alternatively provoke resentment among believe wronged government use race programs stamp minorities badge inferiority may cause develop dependencies adopt attitude entitled preferences indeed justice stevens recognized real harms stemming seemingly benign discrimination see fullilove klutznick stevens dissenting noting remedial race legislation perceived many resting assumption granted special adarand constructors pena preference less qualified respect identified purely race mind racial discrimination based benign prejudice noxious discrimination inspired malicious prejudice instance racial discrimination plain simple obvious every racial classification helps narrow sense races hurts others races benefitted classification surely called benign accordingly whether law relying upon racial taxonomy benign malign ante ginsburg dissenting see also ante stevens dissenting addressing differences invidious benign discrimination either turns whose ox gored regents univ california bakke powell quoting bickel morality consent distinctions found eye beholder adarand constructors pena justice stevens justice ginsburg joins dissenting instead deciding case accordance controlling precedent today delivers disconcerting lecture evils governmental racial classifications text selected three propositions represented bywords skepticism consistency congruence see ante shall comment propositions add words stare decisis finally explain believe duty affirm judgment appeals concept skepticism least principle good statement law common sense undoubtedly wary governmental decision relies upon racial classification racial characteristics seldom provide relevant basis disparate treatment classifications based race potentially harmful entire body politic reviewing must satisfy reasons classification clearly identified unquestionably legitimate fullilove adarand constructors pena klutznick stevens dissenting principle explicit chief justice burger opinion justice powell concurrence dissent fullilove welcome renewed endorsement today opinions fullilove demonstrate substantial agreement standard applied deciding difficult cases necessarily lead agreement cases actually resolved judgment uniform standards often anything uniform evaluate comments consistency congruence stare decisis type skepticism advocates underlying issue ii concept consistency assumes significant difference decision majority impose special burden members minority race decision majority provide benefit certain members minority notwithstanding incidental burden members majority opinion assumption untenable moral constitutional equivalence policy designed perpetuate caste system one seeks eradicate racial subordination invidious discrimination engine oppression subjugating disfavored group enhance maintain power majority remedial preferences reflect opposite impulse desire foster equality society sensible conception government constitutional obligation govern impartially hampton mow sun wong ignore distinction adarand constructors pena illustrate point consider cases addressing federal government discrimination japanese americans world war ii hirabayashi korematsu discrimination issue cases invidious government imposed special burdens curfew exclusion certain areas west coast members minority class defined racial ethnic characteristics members racially defined class exhibited exceptional heroism service adarand constructors pena country war suppose congress decided reward service federal program gave veterans extraordinary preference government employment cf personnel administrator mass feeney congress done racial characteristics motivated discriminatory burdens hirabayashi korematsu defined preferred class veterans nevertheless consistency surely require us describe incidental burden everyone else country odious invidious terms used cases reject concept consistency view special preferences national government provided native americans since comparable official discrimination african americans prevalent much history consistency espouses disregard difference trespassing sign welcome mat treat dixiecrat senator decision vote thurgood marshall confirmation order keep african americans par president johnson evaluation nominee race positive factor equate law made black citizens ineligible adarand constructors pena military service program aimed recruiting black soldiers attempt majority exclude members minority race regulated market fundamentally different subsidy enables relatively small group newcomers enter market interest consistency justify treating differences though similarities explanation treating dissimilar decisions though equally objectionable supposed inability differentiate invidious benign discrimination ante term affirmative action common well understood presence everyday parlance shows people understand difference good intentions bad legal concept cases may difficult classify equal protection jurisprudence identified critical difference state action imposes burdens disfavored state action benefits spite adverse effects many feeney indeed jurisprudence made standard applied cases invidious discrimination turn whether discrimination intentional whether contrast merely discriminatory effect washington davis surely distinction least subtle least difficult apply see concurring opinion usually obvious distinction measure intended benefit members particular minority race measure intended burden minority race state actor inclined subvert constitution might easily hide bad intentions guise unintended effects adarand constructors pena think far difficult enact law intending preserve majority hegemony casting plausibly guise affirmative action minorities nothing inherently wrong applying single standard fundamentally different situations long standard takes relevant differences account example equal protection cases insist differential treatment justified relevant characteristics members favored disfavored classes provide legitimate basis disparate treatment standard treat dissimilar cases differently still recognizing one equal protection clause see cleburne cleburne living center stevens concurring san antonio independent school dist rodriguez marshall dissenting standard subsidies disadvantaged businesses may constitutional though special taxes businesses invalid single standard purports equate remedial preferences invidious discrimination defended name equal protection moreover may find new consistency approach classifications difficult square insistence upon rigidly separate categories discrimination different classes individuals example law currently stands apply intermediate scrutiny cases invidious gender discrimination strict scrutiny cases invidious race discrimination applying standard benign classifications invidious ones remains law today lecture consistency produce anomalous result government easily enact programs remedy discrimination women adarand constructors pena enact programs remedy discrimination african americans even though primary purpose equal protection clause end discrimination former slaves seeassociated general contractors san francisco striking racial preference strict scrutiny upholding gender preference intermediate scrutiny becomes preoccupied abstract standards risks sacrificing common sense altar formal consistency matter constitutional democratic principle decision representatives majority discriminate members minority race fundamentally different representatives decision impose incidental costs majority constituents order provide benefit disadvantaged minority indeed previously adarand constructors pena argued former virtually always repugnant principles free democratic society whereas latter circumstances entirely consistent ideal equality wygant jackson board stevens dissenting insisting doctrinaire notion adarand constructors pena consistency standard applicable governmental actions obscures essential dichotomy iii concept congruence assumes significant difference decision congress adopt program decision state municipality opinion assumption untenable ignores important practical legal differences federal state local decisionmakers differences identified repeatedly consistently opinions separate opinions authored members today majority thus metro broadcasting fcc upheld federal program designed foster racial diversity broadcasting identified special institutional competence national legislature overriding significance cases careful emphasize fcc minority ownership programs specifically approved indeed mandated congress ibid recalled several opinions adarand constructors pena fullilove admonished approach task appropriate deference congress branch charged constitution power provide general welfare enforce appropriate legislation equal protection guarantees fourteenth amendment fullilove see also powell concurring marshall concurring judgment recalled opinions chief justice burger justice powell fullilove explained deference appropriate light congress institutional competence national legislature well congress powers commerce clause spending clause civil war amendments ibid citations omitted majority metro broadcasting plurality fullilove alone relying upon critical distinction federal state programs separate opinion richmond croson justice scalia discussed basis distinction observed one thing permit racially based conduct federal government whose legislative powers concerning matters race explicitly enhanced fourteenth amendment see amdt quite another permit precise entities whose conduct matters race amendment specifically directed see amdt continuing justice scalia explained sound distinction federal state local action based race rests upon substance civil war amendments upon social reality governmental theory record shows words racial discrimination group finds ready expression state local adarand constructors pena federal level children founding fathers come surprise acute awareness heightened danger oppression political factions small rather large political units dates beginning national history see wood creation american republic pp james madison observed support proposed constitution enhancement national powers smaller society fewer probably distinct parties interests composing fewer distinct parties interests frequently majority found party smaller number individuals composing majority smaller compass within placed easily concert execute plan oppression extend sphere take greater variety parties interests make less probable majority whole common motive invade rights citizens common motive exists difficult feel discover strength act unison federalist pp rossiter ed scalia concurring judgment appellant ignores congress unlike state political subdivision specific constitutional mandate enforce dictates fourteenth amendment power enforce may times also include power define situations adarand constructors pena congress determines threaten principles equality adopt prophylactic rules deal situations civil war amendments worked dramatic change balance congressional state power matters race plurality opinion joined rehnquist white citations omitted ironically time effort paper expended differentiating federal state affirmative action majority today virtually ignores issue see ante provides word direct explanation sudden enormous departure reasoning past cases silence however erase difference congress institutional competence constitutional adarand constructors pena authority overcome historic racial subjugation lesser power presumably majority satisfied theory congruence substantive rights provided fifth fourteenth amendments disposes objection based upon divided constitutional powers one thing say one seems dispute fifth amendment encompasses general guarantee equal protection broad contained within fourteenth amendment another thing entirely say congress institutional competence constitutional authority entitles greater deference enacts program designed foster equality deference due state legislature latter extraordinary proposition foregoing discussion demonstrates precedents rejected explicitly repeatedly adarand constructors pena opinion metro broadcasting relied several constitutional provisions justify greater deference owe congress acts respect private individuals programs challenged case congress acted respect private individuals fullilove respect congress draws power directly adarand constructors pena fourteenth amendment section reads congress shall power enforce appropriate legislation provisions article one provisions article congress thus empowered enforce reads state shall make enforce law shall abridge privileges immunities citizens shall state deprive person life liberty property without due process law deny person within jurisdiction equal protection laws amdt fourteenth amendment directly empowers congress time expressly limits accident represents nation consensus achieved hard experience throughout sorry history race relations federal government must primary defender racial minorities may inclined oppress minorities rule congruence ignores purposeful incongruity fundamental system government unacceptable judgment novel doctrine congruence seriously misguided congressional deliberations adarand constructors pena matter important affirmative action accorded far greater deference state municipality concept stare decisis treats language used explaining decisions though important actual holdings opinion treatment incorrect third time entire history considered constitutionality federal program two prior occasions first fullilove klutznick second metro broadcasting fcc upheld program today explicitly overrules metro broadcasting least part ante undermines fullilove recasting standard rested calling even holding question ante way explanation justice advises federal agencies private parties made countless decisions reliance cases depart fabric law restore ante skeptical observer might ask whether pronouncement faithful application doctrine stare decisis brief comment two ailing cases may provide answer view decision metro broadcasting inconsistent rule announced richmond croson ante two decisive distinctions separate adarand constructors pena two cases first metro broadcasting involved federal program whereas croson involved city ordinance metro broadcasting thus drew primary support fullilove predated croson croson distinguished grounds dichotomy majority today discredits although members today majority trumpeted importance distinction croson reject name congruence therefore quite wrong suggest today overruling metro broadcasting merely restores status quo ante law time decision entirely open result reached today decision unjustified departure settled law second metro broadcasting holding rested application intermediate scrutiny indeed always believed labels notwithstanding fcc program upheld case satisfied various standards cases including one majority fashions today truly distinguishes metro broadcasting precedents distinctive goal federal program case instead merely seeking remedy past discrimination fcc program intended achieve future benefits form broadcast diversity reliance race legitimate means achieving diversity first endorsed justice powell regents univ california bakke later wygant jackson board also argued race always irrelevant governmental decisionmaking see stevens dissenting response justice correctly noted although school board relied interest providing black teachers serve role models black students interest confused different goal promoting adarand constructors pena racial diversity among faculty added school board relied interest diversity necessary discuss magnitude interest applicability case ibid thus prior metro broadcasting interest diversity mentioned opinions perfectly clear yet decided whether interest sufficient magnitude justify racial classification metro broadcasting course answered question affirmative majority today overrules metro broadcasting insofar inconsistent holding strict scrutiny applies benign racial classifications promulgated federal government ante proposition fostering diversity may provide sufficient interest justify program inconsistent holding today indeed question remotely presented case take opinion diminish aspect decision metro broadcasting suggestion may necessary future overrule fullilove order restore fabric law ante even disingenuous treatment metro broadcasting endorses strict scrutiny standard justice powell applied bakke see ante acknowledges applied standard fullilove well ante moreover chief justice burger also expressly concluded program considered fullilove valid tests articulated bakke course included justice powell thus adopts standard applied fullilove time questions case continued vitality accuses departing prior law continue believe fullilove case incorrectly decided see stevens dissenting adarand constructors pena neither dissent filed justice stewart contained suggestion issue resolving decided true metro broadcasting fullilove decided important novel difficult question providing different answer similar question today fairly characterized merely restoring previously settled law holding fullilove surely governs result case public works employment act act stat upheld fullilove different several critical respects portions small business act sba stat amended et surface transportation uniform relocation assistance act sturaa stat challenged case differences makes current program designed provide assistance disadvantaged business enterprises dbe significantly less objectionable categorical grant million exchange public contracts class investors defined solely racial characteristics fullilove stevens dissenting meaningful respect adarand constructors pena current scheme objectionable act thus act constitutional must sba sturaa indeed even dissenting views fullilove prevailed program valid unlike act present statutory scheme make race sole criterion eligibility participation program race give rise rebuttable presumption social disadvantage least sturaa gives rise second rebuttable presumption economic disadvantage cfr small business may qualify dbe showing socially economically disadvantaged even receives neither presumptions cfr cfr cfr pt subpt appendixes thus current preference inclusive act make race necessary qualification importantly race sufficient qualification whereas millionaire long history financial successes member numerous social clubs trade associations qualified preference act merely asian american african american see fullilove stevens dissenting neither sba sturaa creates anomaly dbe program excludes adarand constructors pena members minority races fact socially economically disadvantaged cfr ii cfr presumption social disadvantage reflects unfortunate fact irrational racial prejudice along lingering effects still survives presumption economic disadvantage embodies recognition success private sector economy often attributable part social skills relationships unlike current preference designed overcome social economic disadvantages often associated racial characteristics particular case disadvantages present presumptions rebutted cfr cfr program thus designed allow race play part decisional process meaningful basis assuming relevance connection think particularly significant current program targets negotiation subcontracts private firms act applied entirely award public contracts area economy social relationships irrelevant adarand constructors pena proper supervision government contracting officers preclude discrimination particular bidders account race case contrast program seeks overcome barriers prejudice private parties specifically general contractors subcontractors sba sturaa embody congress recognition barriers may actually handicap minority firms seeking business subcontractors established leaders industry history business golfing partners indeed minority subcontractors may face obstacles direct intentional racial prejudice may face particular barriers simply likely new business less likely know others business given difficulties congress reasonably find minority subcontractor less likely receive favors entrenched businesspersons award subcontracts people whose friends existing relationship program part remedy past discrimination importantly response practical problems faced minority subcontractors current program contains another component share section sba provides periodic review status dbe supp cfr dbe status challenged competitor time adarand constructors pena routes certification cfr cfr review prevents ineligible firms taking part program solely minority ownership even firms disadvantaged since become successful emphasis review also indicates administration anticipation presumed disadvantages overcome firms graduate status able compete business including prime contracts equal basis cfr phases statutory policy encouraging formation growth small business enterprises program intended facilitate entry increase competition free market significantly current program unlike establish requirement numerical otherwise general contractor must hire dbe subcontractors program upheld fullilove required federal grant every federally funded project expended minority business enterprises contrast current program contains quota although provides monetary incentives general contractors hire dbe subcontractors require hire dbe lose contracts fail importance incentive general contractors always seek offer lowest bid underestimated preference far less rigid thus narrowly tailored act cf bakke opinion powell distinguishing numerical consideration race factor finally record shows dramatic contrast sparse deliberations preceded act see fullilove stevens dissenting extensive hearings conducted several adarand constructors pena congresses current program developed however might evaluate benefits costs fiscal social program obligation give deference congress policy choices much demanding case fullilove program adarand constructors pena satisfied strict scrutiny dictated justice powell vision constitution vision expressly endorses today must follow night follows day appeals judgment upholding carefully crafted program affirmed vi skeptical scrutiny opinion leaves dissent majority concept consistency ignores difference fundamental idea equal protection oppression assistance majority concept congruence ignores difference fundamental constitutional system federal government majority concept stare decisis ignores force binding precedent affirm judgment appeals footnotes adarand constructors pena even however think unfortunate majority insists applying label strict scrutiny benign programs label usually understood spell death governmental action may apply suggests today strict scrutiny means something different something less strict applied benign racial classifications although agree benign programs deserve different treatment invidious programs danger fatal language strict scrutiny skew analysis place benign programs unnecessary risk course neither sole shameful burdens government imposed japanese americans war however burdens occasion address hirabayashi korematsu see korematsu regardless true nature assembly relocation centers dealing specifically nothing exclusion order see morton mancari eligible preference individual one fourth degree indian blood member tribe quoting biam concluded classification racial encompass native americans upholding relied part plenary power congress legislate behalf indian tribes case government relies part fact members preferred minority groups eligible preference special power legislate behalf minorities granted congress amendment example richmond croson majority members city council enacted race beneficiaries concurrence justice thomas argues significant cost associated program adverse stigmatic effect intended beneficiaries ante although agree cost may significant many people realize see fullilove stevens dissenting think applies facts case first argument petitioner adarand business standing advance beneficiaries specific program attack today challenged constitutionality perhaps find preferences stigmatizing perhaps ability opt program provides relief need second even petitioner case business challenging stigmatizing effect program find justice thomas extreme proposition moral constitutional equivalence attempt subjugate attempt redress effects caste system ante persuasive one thing question wisdom programs many responsible arguments including one based upon stigma congress might find persuasive decides whether adarand constructors pena enact retain preferences another thing altogether equate many intelligent lawmakers constituents whether members majority minority races supported affirmative action years segregationists bigots finally although justice thomas concerned potential effects programs intent enacted proposition odds jurisprudence see washington davis without strong element common sense see stevens concurring brennan dissenting persuaded psychological damage brought affirmative action severe engendered racial subordination event judgment political branches trusted make enacting affirmative action programs legislature intends remove obstacles unfairly placed individuals equal qualifications competitive disadvantage see fullilove marshall concurring judgment believe action whether wise unwise deserves invidious label racial paternalism ante opinion thomas legislature persuaded program harm good individuals designed benefit expect legislature remedy problem significantly true government action based invidious discrimination noted wygant critical difference decision exclude member minority race skin color decision include members minority school faculty reason exclusionary decision rests false premise differences race color person skin reflect real differences relevant person right share blessings free society noted premise utterly irrational cleburne cleburne living center adarand constructors pena repugnant principles free democratic society nevertheless fact persons different races indeed differently colored skin may give rise belief significant difference persons inclusion minority teachers educational process inevitably tends dispel illusion whereas exclusion tend foster inclusionary decision consistent principle men created equal exclusionary decision war principle one decision accords equal protection clause fourteenth amendment thus consideration whether consciousness race exclusionary inclusionary plainly distinguishes board valid purpose case decision reinforce assumptions inequality stevens dissenting despite majority reliance korematsu ante case stand proposition federal remedial programs subject strict scrutiny instead korematsu specifies legal restrictions curtail civil rights single racial group immediately suspect quoted ante emphasis added programs issue case cases curtail civil rights single racial group benefit certain racial groups impose indirect burden majority rejected proposition outside context well hampton mow sun wong held federal sovereign like must govern impartially concept equal justice law served fifth amendment guarantee due process well equal protection clause fourteenth amendment although amendments require type analysis see buckley valeo appeals correctly stated two protections always coextensive language two amendments differ importantly may overriding national interests justify selective adarand constructors pena federal legislation unacceptable individual state hand federal rule applicable limited territory district columbia insular possession special national interest involved due process clause construed significance equal protection clause funding preferences challenged case comes surface transportation uniform relocation assistance act sturaa stat congress granted funds exchange commitment foster subcontracting disadvantaged business enterprises dbe sturaa also source funding dbe preferences federal highway contracting approximately sturaa funding allocated brief respondents moreover sturaa empowered certify businesses disadvantaged purposes receiving subcontracting preferences state federal contracts sturaa stat case adarand sued federal officials responsible implementing federal highway contracting policy directly challenged dbe preferences granted state contracts funded sturaa entirely clear whether majority congruence rationale apply federally regulated state contracts may conceivably within majority view congress authority even federal contracts see metro broadcasting dissenting read majority opinion however draws distinctions direct federal preferences federal preferences achieved subsidies extent sturaa intertwines elements direct federal regulations elements federal conditions grants make distinction difficult sustain congress acted respect enacting sturaa need revisit today difficult question application pure federal regulation individuals read positive grant authority congress punish violations also define expand scope equal protection clause katzenbach morgan katzenbach meant congress require allow citizens vote even denying citizens vote independent violation congress expand coverage exercising power acts foster equality congress done decided granting certain preferences minorities best serves goals equal protection skeptical observer might also notice justice explanation departing settled precedent joined justice kennedy ante three members majority thus provide explanation whatsoever unwillingness adhere doctrine stare decisis course justice stewart believed view disapproving racial classifications kind consistent precedents see ante citing claim question whether federal government engage affirmative action decided fullilove fact justice dissents opinion means disagrees result usually mean believes decision departs fabric law reasoning repudiated next opportunity much less dissent bind authorize later majority reject precedent disagrees sturaa accords rebuttable presumption social economic disadvantage members racial minority groups cfr contrast sba accords presumption social disadvantage cfr applicant burden demonstrating economic disadvantage finally sba accords least presumption social disadvantage ambiguous whether economic disadvantage presumed must shown see ed supp cfr government apparently takes exclusion seriously see autek systems supp dc upholding small business administration decision minority business owner personal income disqualified dbe status program aff cadc unhappy persistence practice lingering effects racial discrimination minority groups country unfortunate reality government disqualified acting response ante findings clearly state groups black americans hispanic americans native americans continue discriminated discrimination led social disadvantagement persons identified society members groups cong rec department transportation strongly urges institute periodic review businesses certified dbe sturaa cfr pt subpt app mandate review government points us provisions review certification although review may derivative businesses receive certification result sturaa certification government points us following legislative history amend small business act extend current sba pilot program hearing senate select committee small business sess small minority business decade part hearings house committee small business sess minority business contribution economy hearing senate committee small business sess federal contracting opportunities minority businesses examination subcontracting program hearings senate committee small business sess women entrepreneurs success problems hearing senate committee small business sess state hispanic small business america hearing subcommittee sba sbic authority minority enterprise general small business problems house committee small business sess minority enterprise general small business problems hearing subcommittee sba sbic authority minority enterprise general small business problems house committee small business sess disadvantaged business transportation construction projects hearings subcommittee procurement innovation minority enterprise development house committee small business sess barriers full minority participation federally funded highway construction projects hearing subcommittee house committee government operations sess surety bonds minority contractors hearing subcommittee commerce consumer protection competitiveness house committee energy commerce sess small business problems hearings house committee small business sess see brief respondents adarand constructors pena justice souter justice ginsburg justice breyer join dissenting case worked way federal courts prior grant certiorari brought petitioner adarand constructors understood raised one significant claim federal agency may exceed goals adopted congress implementing remedial program fifth fourteenth amendments require agency make specific findings discrimination richmond croson sufficient justify surpassing congressional objective see gravamen adarand argument cflhd must make particularized findings past discrimination justify scc program croson precise goals challenged scc program fashioned specified agency congress adarand constructors skinner supp plaintiff motion summary judgment seeks declaratory judgment permanent injunction dot fha cflhd specific findings discrimination made defendants allegedly required city adarand constructors pena richmond croson cf complaint app federal regulations violate fourteenth fifteenth amendments requiring use racial gender preferences award federally financed highway construction contracts without findings past discrimination award contracts although petition certiorari added antecedent question challenging use fifth fourteenth amendments standard strict scrutiny judge constitutionality statutes respondents acted entertained question case statutory scheme must treated constitutional fullilove klutznick applied petitioners identify factual premises fullilove rested disappeared since case decided opinion explains detail scheme question provides financial incentives general contractors hire subcontractors certified disadvantaged business enterprises basis certain presumptions see generally ante statutes originals current ones reenactments previously justified providing remedies continuing effects past discrimination see fullilove supra citing legislative history describing sba remedial committee report stating dbe provision sturaa necessary remedy discrimination faced socially economically disadvantaged persons government defended case brief respondents since petitioner claimed obsolescence particular fact fullilove upheld statute issue come us might resolved way render fullilove inapposite see adarand constructors pena adarand stipulated section small business act satisfies evidentiary requirements fullilove memorandum points authorities support plaintiff motion summary judgment fullilove applicable case bar irst foremost fullilove stands one proposition relevant ability congress certain limited circumstances adopt remedy circumstances agree justice stevens conclusion stare decisis compels application fullilove although fullilove reflect doctrinal consistency several opinions produced result shared grounds petitioner attack discrimination construction industry subject government acquiescence effects remain may addressed preferential treatment falling within congressional power fourteenth amendment fullilove opinion burger powell concurring marshall concurring judgment fullilove applied justice stevens points follows statutes question substantially better tailored harm remedied statute endorsed fullilove see ante stevens dissenting pass muster fifth amendment due process fourteenth amendment equal protection adarand constructors pena today however reach application fullilove facts case remand incumbent government petitioner address anew facts upon statutes like must judged government remedial theory justification facts current effects past discrimination necessity preferential remedy suitability particular preferential scheme petitioner course raised issues standard employed fullilove plurality without trying read current congressional evidentiary record may bear resolving issues recognize possibility proof changed facts might rendered fullilove conclusion obsolete judged fullilove plurality standard may seems fair ask whether statutes meet different fate fullilove decreed answer quite probably though course interpretive forks road significance strict scrutiny congressional remedial statutes becomes entirely clear result fullilove controlled plurality chief justice burger spoke announcing judgment although opinion adopt label standard applied although later seen calling less strict scrutiny metro broadcasting fcc none justice powell joined plurality opinion comporting view strict scrutiny standard applied injurious classifications fullilove supra powell concurring although place greater emphasis chief justice need articulate judicial standards review conventional terms view opinion announcing judgment substantially accord views chief justice adarand constructors pena burger noncategorical approach probably best seen lenient strict scrutiny reflecting conviction scrutiny structure merely embroidered single standard reasonableness whenever equal protection challenge required balancing justification probable harm see cleburne cleburne living center stevens concurring joined burger indeed recognition today strict scrutiny compatible survival classification reviewed demonstrates concepts equal protection enjoy greater elasticity standard categories might suggest see ante wish dispel notion strict scrutiny strict theory fatal fact fullilove supra marshall concurring judgment see also missouri jenkins post concurring slip true strict scrutiny strict theory fatal fact assessing degree today holding portends departure past practice also worth noting nothing today opinion implies view congress power deference due exercise differs views expressed fullilove plurality simply notes observation croson treatment exercise congressional power fullilove dispositive croson facts implicate congress broad power fourteenth amendment ante explains disagreement among today majority extent power ante therefore reason treat opinion affecting one way another views power described broad ante unique fullilove supra powell concurring unlike state political subdivision croson opinion see adarand constructors pena also jenkins post concurring slip congress enjoys discretion determining whether legislation needed secure guarantees fourteenth amendment croson quoting katzenbach morgan thus today decision leave exactly source interest national government sufficiently important satisfy corresponding requirement strict scrutiny test finally say understand today decision necessarily effect resolution issue pertinent fullilove unlabeled standard standard strict scrutiny adopted long accepted view constitutional authority remedy past discrimination limited power forbid continuation extends eliminating effects otherwise persist skew operation public systems even absence current intent practice discrimination see albemarle paper moody racial discrimination concerned district merely power duty render decree far possible eliminate discriminatory effects past well bar like discrimination future quoting louisiana whether remedial authority exercised see ibid green school board new kent county congress see fullilove powell concurring legislature see croson supra opinion indeed majority today reiterates circumstances government may consistently constitution adopt programs aimed remedying effects past invidious discrimination see ante opinion adarand constructors pena slip stevens ginsburg joins dissenting slip ginsburg breyer joins dissenting slip op jenkins post concurring slip op noting critical difference unconstitutional discrimination narrowly tailored remedial programs legislatures may enact compelling governmental interest redressing effects past discrimination extirpation lingering discriminatory effects thought require mechanism like racially preferential inducement statutes considered result may members historically favored race hurt remedial mechanism however innocent may personal responsibility discriminatory conduct price considered reasonable part price paid temporarily justification preference eliminating effects past practice assumption effects recede past becoming attenuated finally disappearing thus justice powell wrote concurring opinion fullilove temporary nature remedy ensures program last longer discriminatory effects designed eliminate ante opinion surely transition fullilove plurality view justice powell joined today strict scrutiny presumably applied justice powell employed signal change standard burden remedial racial preference judged reasonable given time district adarand chosen press challenge adarand constructors pena reasonableness burden statutes decade fullilove examined burden doubt claim fared differently way treated remand statutes within power enforceable national government makes construction contract directly funnels construction money event justice stevens noted see ante clear whether current challenge implicates fifth amendment due process fourteenth amendment equal protection well say press challenge petitioner memorandum support summary judgment include argument challenging reasonableness duration statutory scheme durational claim far aware stated elsewhere event gravamen complaint adarand constructors pena justice ginsburg justice breyer joins dissenting reasons stated justice souter view attention political branches currently giving matter affirmative action see compelling cause intervention made case agree justice stevens area large deference owed judiciary congress institutional competence constitutional authority overcome historic racial subjugation ante stevens dissenting see write separately underscore differences adarand constructors pena several opinions case display considerable field agreement common understandings concerns revealed opinions together speak majority statutes regulations issue indicates adopted political branches response unfortunate reality unhappy persistence practice lingering effects racial discrimination minority groups country ante lead opinion suffers lingering effects nation history idea one race ante scalia concurring part concurring judgment embraced generations lawmakers judges unprepared say land superior race race inferior plessy ferguson endorse oppressive practice race segregation even justice harlan advocate constitution stated white race deems dominant race country prestige achievements education wealth power doubt continue time remains true great heritage holds fast principles constitutional liberty harlan dissenting adarand constructors pena divisions difficult case obscure recognition persistence racial inequality majority acknowledgement congress authority act affirmatively end discrimination also counteract discrimination lingering effects ante lead opinion see also ante souter dissenting effects reflective system racial caste recently ended evident workplaces markets neighborhoods job applicants identical resumes qualifications interview styles still experience different receptions depending race white adarand constructors pena consumers still encounter different deals people color looking housing still face discriminatory treatment landlords real estate agents mortgage lenders minority entrepreneurs sometimes fail gain contracts though low bidders sometimes refused work even winning contracts bias conscious unconscious reflecting traditional unexamined habits thought keeps barriers must come equal opportunity nondiscrimination ever genuinely become country law practice adarand constructors pena given history practical consequences congress surely conclude carefully designed affirmative action program may help realize finally equal protection laws fourteenth amendment promised since ii lead opinion uses one term strict scrutiny describe standard judicial review governmental classifications race ante opinion elaboration strongly suggests strict standard announced indeed fatal classifications burdening groups suffered discrimination society seems believe enduring lesson one draw korematsu case scrutiny described rigid nonetheless yielded pass odious gravely injurious racial classification see ante lead opinion classification read opinions case never survive scrutiny classification history precedent instruct properly ranks prohibited classification made hasten day one race ante scalia concurring part concurring judgment however lead opinion dispelled notion strict scrutiny adarand constructors pena fatal fact ante quoting fullilove klutznick marshall concurring judgment properly majority calls review searching order ferret classifications reality malign masquerading benign see ante lead opinion lax review classifications demonstrates need suspicion see hoyt florida upholding women privilege automatic exemption jury service goesaert cleary upholding michigan law barring women employment bartenders see also johnston knapp sex discrimination law study judicial perspective rev today decision thus usefully reiterates purpose strict scrutiny precisely distinguish legitimate illegitimate uses race governmental decisionmaking ante lead opinion differentiate permissible impermissible governmental use race distinguish trespassing sign welcome mat close review also order reason justice souter points ante dissenting opinion case shows members historically favored race hurt mechanisms designed cope lingering effects entrenched racial subjugation review ensure preferences large trammel unduly upon opportunities others interfere harshly legitimate expectations persons groups see bridgeport guardians bridgeport civil service adarand constructors pena congressional authority enforce equal protection principle see heart atlanta motel douglas concurring recognizing congress authority fourteenth amendment pu end obstructionist strategies allo every person whatever race creed color patronize places public accommodation without discrimination whether travels interstate intrastate goldberg concurring primary purpose civil rights act vindication human dignity congress clearly authority fourteenth amendment commerce clause enact law gunther constitutional law ed refused rule constitutionality antimiscegenation laws twice declined accept appeals decree virginia appeals relied loving see naim naim vacated remanded reinstated aff app dism naim expressed state view legislative purpose served virginia law preserve racial integrity virginia citizens prevent corruption blood mongrel breed citizens obliteration racial pride see cross et employer hiring practices differential treatment hispanic anglo job seekers urban institute report anglo applicants sent investigators received job offers matched hispanics turner et opportunities denied opportunities diminished racial discrimination hiring xi urban institute report one five audits white applicant able advance farther hiring process black counterpart one eight audits white offered job although equally qualified black partner contrast black auditors advanced farther white counterparts percent time received job offers white partners percent see ayres fair driving gender race discrimination retail car negotiations harv rev blacks women simply buy car price white men using identical bargaining strategies final offers given white female testers reflected percent higher markups given white male testers final offer markups black male testers twice high black female testers three times high white male testers see common destiny blacks american society jaynes williams many metropolitan areas housing inquiries blacks met clearly discriminatory responses turner et department housing urban development housing discrimination study synthesis audit study housing searches metropolitan areas half hispanic testers seeking rent buy experienced form unfavorable treatment compared paired white testers leahy racial factors important allocation mortgage money econ soc controlling socioeconomic factors concluding even neighborhoods appear similar every major criterion except race outcomes still unequal see associated general contractors coalition economic equity detailing examples san francisco cf wygant jackson bd stevens dissenting califano goldfarb stevens concurring judgment differences laws designed benefit historically disfavored group laws designed burden group see carter victims happen black yale hatever source racism count racialism say two centuries struggle basic civil rights mostly freedom racial categorization rather freedom racial oppression trivialize lives deaths suffered racism pretend issue presented bakke issue brown pretend history never happened present page