Adarand V. Pena Case

1. In the Adarand litigation, the white male co-owner and general manager of Adarand Constructors claimed that the subcontractor compensation clause violated his constitutional right to equal treatment under the law. Because in 1989, Mountain Gravel & Construction Company chose Gonzales Construction Company to build highways in the San Juan National Forest of southwest Colorado, rather than chose the lower bidder-Adarand Constructors, Inc.. The part of the prime contract that caused Mountain Gravel to reject Adarand low bid was called a "subcontractor compensation clause". Under this compensation clause, if Mountain Gravel use one DBE, disadvantaged business enterprise, it can receive 10 percent of the guardrail subcontract, up to a maximum of 1.5 percent of dollar amount of the prime contract. If two DBE were used, the compensation was even more. That is to say, even a DBE company submitted a higher bid, the construction company can still get benefit from the compensation payment. There are two categories of disadvantaged persons: socially disadvantaged persons and economically disadvantaged persons. Socially disadvantaged persons were defined as "those who have been subjected to racial or ethnic prejudice or cultural bias" and economically disadvantaged persons were defined as those "whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged" (p. 636). Any small business with 51 percent or greater ownership by persons in these categories could be certified as a "disadvantaged business enterprise", or DBE. Generally speaking, black, Hispanic, Asian Pacific, subcontinent Asian, and Native American persons and women were presumed both socially and economically handicapped. However, in the Fifth Amendment, it reads: "No person shallﾡﾭbe deprived of life, liberty, or property, without due process of law." and the Fourteenth Amendment "prohibits states from denying 'equal protection of the laws' to their citizens" (p.636-637). So both the Fifth Amendment and the Fourteenth Amendment protect citizens from arbitrary or unequal treatment. It is obvious that Adarand who could offer lower bid suffered unequal treatment. Prime contractors had rejected the company's low bids five times to favor its DBE competitors.

2. Based on the precedent case, courts have developed standards for testing the constitutional validity of laws that classify citizens. All such laws must withstand one of three levels of scrutiny by a skeptical judiciary: 1) Ordinary scrutiny, the lowest level which "requires that government prove its classification scheme is 'reasonably' related to a 'legitimate interest'". 2) Intermediate scrutiny, "a heightened standard requiring that the law be 'substantially related' to an 'important government objective'". 3) Strict scrutiny, the final and most exacting level is "reserved for racial classifications regarded as pernicious and undesirable". When strict scrutiny was used, the law in question is unconstitutional unless it was "narrowly tailored" to meet a "compelling government interest" (p.638). The affirmative action program should make a law constitutional by withstanding one of the three levels of scrutiny. In Adarand case, the "subcontractor compensation clause" should be tested to be constitutional so that prime contract could provide bonus to Construction Company who pick a DBE constructor.

3. The precedents had been established for minority preferences in contracting. In Croson case, the Court had applied strict scrutiny to a city plan and declared it unconstitutional. But in both Fullilove and Metro cases, the Court had applied only intermediate scrutiny to congressional affirmative action plans and both were upheld. The majority opinion toward to Adarand v. Pena case returned to Croson and ruled that "the Department of Transportation plan giving preferences in bidding to minority subcontractors would have to withstand the test of strict scrutiny" (p. 639). In other words, the plan should be "narrowly tailored" and meet a "compelling government interest". The case returned to the Tenth Circuit to be redecided using the strict scrutiny test instead of the lesser test of intermediate scrutiny. If the Department of Transportation plan cannot be verified by the strict scrutiny, the plan is unconstitutional, and the equal protection rights of Adarand Constructors had been violated. The decision of the Court majority is correct. Even though the issue in Adarand was closer to the line of precedent of Fullilove and Metro, which the Court applies only intermediate scrutiny to affirmative action plans, the majority justice departed from the line of these two cases. The Justice Sandra wrote that the Court's longstanding, deep suspicion of any race classification should "override the recent efforts of some liberal justices to apply more lax scrutiny to forms of discrimination they called 'benign'" (p. 640). If allow lax scrutiny to pass laws, discrimination still be existed in the society and unequal treatment correspondingly occur. The unequal treatment violates the Fifth and Fourteenth Amendments. The doctrine set under the Brown decision "separate