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.
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.
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.
its Adarand II decision of 1994, the United States Court of
Appeals, Tenth Circuit, said
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
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:"
The Supporting Cases,
the names Fullilove,
and especially Metro
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.
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
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.
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
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
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.
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.
March 26, 2001, the Supreme Court decided to hear Adarand VIII
to determine whether
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
United States Department of Transportation's current
Disadvantaged Business Enterprise program is narrowly
tailored to serve a compelling governmental interest.
in late 2001 or 2002, the Supreme Court should issue a decision
in Adarand VIII.