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The Adarand Chronicle:  From Bakke to Adarand VII

The Adarand Decisions

  On September 15, 1989, the Central Federal Lands Highway Division (CFLHD), part of the Federal Highway Administration, which is part of the United States Department of Transportation (DOT), awarded a highway construction contract.  The prime contractor solicited bids for guard-rail work and Adarand Constructors, Inc. submitted the low bid.   Instead of accepting the low bid, the prime contractor selected a small business controlled by "socially and economically disadvantaged individuals" to collect an incentive award for using these firms.

This subcontract award began a string of federal court decisions that continues today.  The case has been to the United States District Court in Colorado, twice; the United States Court of Appeals, Tenth Circuit, three times; and is presently in the United States Supreme Court, for the third time.  The case has been on the legal highway for so long that the court system keeps track of it with roman numerals.  It has been through numbers I, II, III, IV, V, VI, VII, and now VIII.  If the Supreme Court ends this case with Adarand VIII, it will be completed in late 2001 or 2002.   

Although Adarand deals with a DOT program, the DOT program also involves the Small Business Act's 8(a) prime contract award program, 8(d) subcontract award program, and section 8(g) goal setting program.  The cases also includes the Small Business Administration regulations that implement the Small Business Act's programs.  Finally, Adarand is about the equal protection component of the Fifth Amendment's due process clause.

In its Adarand II decision of 1994, the United States Court of Appeals, Tenth Circuit, said

"The lesson that we glean from Fullilove and Croson is that the federal government, acting under congressional authority, can engage more freely in affirmative action than states and localities.  Ellis 961 F. 2d at 915-15.  The validity of that proposition was reaffirmed in Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 . . . where the Court put to rest any lingering doubts about the continuing vitality of Fullilove:"

As discussed at The Supporting Cases, the names Fullilove, and especially Metro Broadcasting, surely brought back memories for the Supreme Court.  Metro Broadcasting was a Fifth Amendment case and Chief Justice Rehnquist and Justices O'Connor, Kennedy, and Scalia had dissented from the majority opinion in Metro Broadcasting.  These Justices were on the Court in 1995 and they were bolstered by the appointment of Justice Thomas.  On the other hand, only Justice Stevens remained from the majority Justices in Metro Broadcasting.  It no longer mattered what Justice Stevens thought.  The Rehnquist Court now had a majority of five for any decision.  It was time for a rematch with Metro Broadcasting and the Rehnquist Court, in Adarand III, showed no mercy. 

With its decision in Adarand III, the Supreme Court sent Adarand back to Colorado.  The District Court issued Adarand IV in 1997 and found that the program was unconstitutional because it was not narrowly tailored.  Specifically, the Court said

"The inconsistencies between these statutes and regulations and the resultant uncertainty as to who may or may not participate in the race-based SCC program preclude a finding of narrow tailoring."

By the time the Court of Appeals issued its decision in Adarand V in 1999, Adarand had been certified as a Disadvantaged Business Enterprise by the state of Colorado.  As a result, the Court of Appeals considered the issue moot and sent Adarand back to District Court for dismissal.  In January 2000, the Supreme Court, in Adarand VI, reversed the decision of the Court of Appeals and again sent Adarand back to Colorado and the Court of Appeals. 

By the time the Court of Appeals took its third look at Adarand, it found that the federal government had changed the rules of the program.  In a careful evaluation of the old and revised program using the strict scrutiny standard, the Appeals Court in Adarand VII said that the old program was unconstitutional but that the revised program served a compelling governmental interest and it was narrowly tailored to achieve the compelling interest.    

On March 26, 2001, the Supreme Court decided to hear Adarand VIII to determine whether

  • the court of appeals misapplied the strict scrutiny standard in determining if Congress had a compelling interest to enact legislation designed to remedy the effects of racial discrimination. And 
  • the United States Department of Transportation's current Disadvantaged Business Enterprise program is narrowly tailored to serve a compelling governmental interest.

Sometime in late 2001 or 2002, the Supreme Court should issue a decision in Adarand VIII.

Copyright 2001 by Robert M. Antonio



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