Adarand Constructorsrs v. Pena

Federal government. The first part of the paper will briefly examine the history of judicial scrutiny of affirmative action programs. The second part of the paper will summarize the majority and dissenting opinions in Adarand. The third part of the paper will discuss how these opinions fit with previous decisions of the Court in this area.

The Adarand decision marked the acceptance by a bare majority of the Court of a uniformity of analysis under the Equal Protection Clause. Prior to this decision, a majority of the Court had clung to the notion that somehow discrimination intended to benefit historically disadvantaged minorities was preferable to no discrimination whatsoever. This thinking reflected a belief in the primacy of group rights over individual rights. This sort of thinking, however, conflicted with basic principles of the U.S. Constitution. That document was based upon the primacy of individual rights, the idea that everyone should have an equal opportunity to succeed. The former majority in the Court felt otherwise, that equality should be present in results, rather than in opportunity.

As will be seen in this paper, those who have attacked the ruling in Adarand as be

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stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility." In Metro Broadcasting, Inc. v. FCC, however, a 5-4 majority led by Justice Brennan held that the proper standard to be applied to federal affirmative action programs was intermediate scrutiny: the program had to serve important governmental interests and had to be substantially related to the achievement of those interests. The majority distinguished this case from Croson by saying that the program in this case was supported by the institutional competence of Congress and by the Commerce Clause power. The majority further noted that the governmental interest at stake need not be to remedy the effects of past discrimination. The four dissenting justices would have applied strict scrutiny analysis, consistent with the ruling in Croson. Justice O'Connor noted that this case did not even come under the ruling in Fullilove, since the FCC program was not implemented pursuant to the Congressional powers under Section Five of the Fourteenth Amendment. Moreover, the plurality in Fullilove did not adopt the intermediate level of scrutiny for affirmative acti
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Approximate Word count = 3176
Approximate Pages = 13 (250 words per page)