Sources & Extracts

Review these ideas and then go back to the main thread.


In Adarand Constructors v. Pena the Supreme Court attempted to clarify the constitutionality of race-based affirmative action programs. Justice O'Connor wrote the majority opinion. Her argument builds on the Croson decision, which applied to state and local governments.

With Croson, the Court finally agreed that the fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. But Croson of course had no occasion to declare what standard of review the Fifth Amendment requires for such action taken by the Federal Government. . . .
Despite lingering uncertainty in the details, however, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. [O'Connor then identifies the three propositions as "skepticism." "consistency," and "congruence."] . . . . Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. . . .

O'Connor goes on to reject the notion that the benign use of racial classifications should only be subjected to an "intermediate" level of scrutiny.

We adhere to that view today, despite the surface appeal of holding 'benign' racial classifications to a lower standard, because 'it may not always be clear that a so-called preference is in fact benign.'. . .
Finally, we wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.'. . .The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it. . . .
When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the 'narrow tailoring' test this Court has set out in previous cases.

Reference: From Adarand Constructor's v. Pena, brackets added.