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The Adarand Chronicle:  From Bakke to Adarand VII

Standards of Scrutiny


The Supreme Court applies three standards of scrutiny or levels of review to cases involving equal protection issues.  These standards are called rational, intermediate, and strict scrutiny. They include a two-part analysis of a governmental program.  First, there is a determination of whether the governmental program serves a valid purpose, objective, or interest.  Second is an analysis of the means the government uses to fulfill the purpose, objective, or interest.  In many cases, a Justice will use certain key words that can help identify the standard being used.  However, a Justice may use slightly different terminology also.  Below is a brief explanation of these standards.

Rational Scrutiny

The rational standard of scrutiny is the least thorough standard of scrutiny.  The governmental purpose or interest may be referred to as "legitimate."   The means to achieve the interest is reviewed to determine if it is "rationally related" to the accomplishment of the governmental purpose, objective, or interest.  For example, 

“To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose."  (Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985))

None of the cases in this article are reviewed under rational scrutiny.  

Intermediate Scrutiny

The intermediate standard of scrutiny is a more thorough analysis than rational scrutiny.  The governmental purpose, objective, or interest may be referred to as "important."  The means to achieve the interest is reviewed to determine if it is "substantially related" to the accomplishment of the governmental purpose or interest.  For example, 

“Instead, a number of considerations -- developed in gender discrimination cases but which carry even more force when applied to racial classifications -- lead us to conclude that racial classifications designed to further remedial purposes 'must serve important governmental objectives, and must be substantially related to achievement of those objectives.'" Califano v. Webster, supra at 317, quoting Craig v. Boren, 429 U.S. 190, 197 (1976).”  (Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 359. (1978))

Strict Scrutiny

The strict scrutiny standard is the most thorough analysis.  Sometimes it is referred to as strict in theory but fatal in fact because few governmental programs survive strict scrutiny.  The governmental purpose, objective, or interest may be referred to as "compelling."   The means to achieve the purpose, objective, or interest is reviewed to determine if it is "narrowly tailored" to the accomplishment of the governmental purpose, objective, or interest.  For example, 

"We must decide whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored."  (Wygant v. Jackson Board of Education, 476 U.S. 267, 274 (1986))


In 1996, Justice Scalia provided an explanation of the Court's application of its standards of scrutiny.  He said

“I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: 'rational basis' scrutiny, intermediate scrutiny, or strict scrutiny.  These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.  Strict scrutiny, we have said, is reserved for state 'classifications based on race or national origin and classifications affecting fundamental rights,' Clark v. Jeter, 486 U.S. 456, 461 (1988) (citation omitted).  It is my position that the term 'fundamental rights' should be limited to 'interest[s] traditionally protected by our society,' Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion of Scalia, J.); but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider 'fundamental.'  We have no established criterion for 'intermediate scrutiny' either, but essentially apply it when it seems like a good idea to load the dice.  So far it has been applied to content neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex.

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it)."  (United States v. Virginia et al. (94-1941), 518 U.S. 515 (1996))

It is disheartening to have a Supreme Court Justice explain the Court's standards of review in this manner.  However, a review of numerous cases makes it impossible to refute his statement.  As he explains, there is no established criteria for intermediate scrutiny.  Intermediate scrutiny was used in several of the Adarand and the supporting decisions.  However, it cannot be determined what the Justices did to reach their opinions.  For strict scrutiny, the Justices seem to have a better idea of what to do.  Strict scrutiny also was used in the Adarand and supporting decisions.

Since the strict scrutiny analysis appears to be controlling at the moment for race- or ethnic-based classifications, a framework for the analysis is provided below.


Justice Powell explained the two-step process of a strict scrutiny analysis by saying 

"There are two prongs to this examination.  First, any racial classification 'must be justified by a compelling governmental interest.'  Palmore v. Sidoti, 466 U.S. 429 , 432 (1984); see Loving v. Virginia, supra, at; cf. Graham v. Richardson, 403 U.S. 365 , 375 (1971) (alienage).  Second, the means chosen by the State to effectuate its purpose must be 'narrowly tailored to the achievement of that goal.'  Fullilove, supra, at 480.  We must decide whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored."  (Wygant v. Jackson Board of Education, 476 U.S. 267 @274 (1986))

Compelling Governmental Interest

The elimination of the effects of racial or ethnic discrimination is a compelling governmental interest.  However, the government needs to prove the existence of the compelling interest which is evidence of the effects of discrimination.  Justice O'Connor explains that

"While the States and their subdivisions may take remedial action when they possess evidence that their own spending practices are exacerbating a pattern of prior discrimination, they must identify that discrimination, public or private, with some specificity before they may use race-conscious relief."  (Croson, @ p. 505)

So how does one prove a compelling interest?  It seems that a simple cause and effect relationship should suffice.  Even here, mistakes have been made by governments.  For example, Justice Powell criticized a Michigan school board and union because they sought to establish a direct comparison of the  number of minority faculty to the number of minority students to show the effects of discrimination.  He said

"There are numerous explanations for a disparity between the percentage of minority students and the percentage of minority faculty, many of them completely unrelated to discrimination of any kind.  In fact, there is no apparent connection between the two groups."  (Wygant @ p. 276)

Similarly, Justice O'Connor criticized the City of Richmond's efforts to compare contracts awarded to minority firms and the minority population of the city.  She said

"Reliance on the disparity between the number of prime contracts awarded to minority firms and the minority population of the city of Richmond is similarly misplaced."  (Croson @ p. 501)

The key to proving a compelling interest is a comparison between like items.  For example, the number of contracts awarded and the number of qualified contractors.  The Justices provide some direction for a proper comparison.  For example, Justice Stewart said

"The Court of Appeals was correct in the view that a proper comparison was between the racial composition of Hazelwood's teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market."  (Hazlewood School District v United States 433 U.S. 299 (1977) at p. 308)

"But where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task."  (Croson @ p. 501)

"Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors, an inference of discriminatory exclusion could arise.  In such a case, the city would have a compelling interest in preventing its tax dollars from assisting these organizations in maintaining a racially segregated construction market."  (Croson, @ p. 503 )

Narrowly Tailored Remedy

Once a compelling interest is proven, the selected remedy must be tailored to fulfill the government's specific goal.  The ideal is to identify only those affected by discrimination and to eliminate the effects of the discrimination--and no more.  Justice Powell pieced together an example of a narrow tailoring process in Fullilove and said

"When reviewing the selection by Congress of a race-conscious remedy, it is instructive to note the factors upon which the Courts of Appeals have relied in a closely analogous area. Courts reviewing the proper scope of race-conscious hiring remedies have considered (i) the efficacy of alternative remedies, NAACP v. Allen, 493 F.2d 614, 619 (CA5 1974); Vulcan Society Inc. v. Civil Service Comm'n, 490 F.2d 387, 398 (CA2 1973), (ii) the planned duration of the remedy, id. at 399; United States v Wood, Wire & Metal Lathers Local 6, 471 F.2d 408, 414, n. 12 (CA2), cert. denied, 412 U.S. 939 (1973), (iii) the relationship between the percentage of minority workers to be employed and the percentage of minority group members in the relevant population or workforce, Association Against Discrimination v. Bridgeport, 594 F.2d 306, 311 (CA2 1979); Boston Chapter NAACP v. Beecher, 504 F.2d 1017, 1026-1027 (CA1 1974), cert. denied, 421 U.S. 910 (1975); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d 1333, 1341 (CA2 1973) cert. denied, 421 U.S. 991 (1975); Carter v. Gallagher, 452 F.2d 315, 331 (CA8) (en banc), cert. denied, 406 U.S. 950 (1972), and (iv) the availability of waiver provisions if the hiring plan could not be met, Associated General Contractors, Inc. v. Altshuler, 490 F.2d 9, 18-19 (CA1 1973), cert. denied, 416 U.S. 957 (1974)."  (Fullilove @ 510)

Similarly, Justice Brennan outlined factors to review and said

"In determining whether race-conscious remedies are appropriate, we look to several factors, including the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties."  (United States v. Paradise, 480 U.S. 149 @ p. 171)

With this assistance provided by the Court, and with other bits and pieces of information from the Court's decisions, we can patch together a framework to determine if a remedy is narrowly tailored.  This framework includes 

  • The use of alternative remedies before resorting to a race- or ethnic-based classification,

  • duration of the proposed remedy,

  • potential for a waiver from the program or the flexibility of the program,

  • identification of the class to receive the preference, and

  • burden placed on innocent third parties.

Alternative Remedies

The Court looks to see if the government used alternatives to race-based or ethnic-based remedies to eliminate the effects of discrimination.  For example, if minority firms lack the capital needed to compete, an alternative would be a financing program designed to assist small businesses.  This would have the effect of assisting minority small businesses.  Justice O'Connor made this point in Croson where she said

"Many of the barriers to minority participation in the construction industry relied upon by the city to justify a racial classification appear to be race neutral.  If MBE's disproportionately lack capital or cannot meet bonding requirements, a race-neutral program of city financing for small firms would, a fortiori, lead to greater minority participation."  (Croson @ p. 507)

"Even in the absence of evidence of discrimination, the city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races would open the public contracting market to all those who have suffered the effects of past societal discrimination or neglect.  Many of the formal barriers to new entrants may be the product of bureaucratic inertia more than actual necessity, and may have a disproportionate effect on the opportunities open to new minority firms.  Their elimination or modification would have little detrimental effect on the city's interests and would serve to increase the opportunities available to minority business without classifying individuals on the basis of race.  The city may also act to prohibit discrimination in the provision of credit or bonding by local suppliers and banks."  (Croson @ p. 509)

Duration of the Remedy

This part of the analysis is not well-documented or at least not well-documented in this line of cases.  However, it appears that the Court will look to determine if there is a time limit on the program.  For example, Justice Powell said

"The 103 (f) (2) set-aside is not a permanent part of federal contracting requirements.  As soon as the PWEA program concludes, this set-aside program ends.  The temporary nature of this remedy ensures that a race-conscious program will not last longer than the discriminatory effects it is designed to eliminate.  It will be necessary for Congress to re-examine the need for a race-conscious remedy before it extends or re-enacts 103 (f) (2)."  (Fullilove @ p. 513)

Waiver or Flexibility

An opportunity to obtain a waiver from the program is often referred to as flexibility of the program.  For example, Justice Powell noted that

"This announced policy makes clear the administrative understanding that a waiver or partial waiver is justified (and will be granted) to avoid subcontracting with a minority business enterprise at an 'unreasonable' price, i.e., a price above competitive levels which cannot be attributed to the minority firm's attempt to cover costs inflated by the present effects of disadvantage or discrimination."  (Fullilove, @ p. 470)

Identification of the Class

Another important feature of "narrow-tailoring" is to have the program apply only to those who have suffered from the effects of discrimination.  The closer the program is to identifying its target, the more chance it has to survive.   Key words in this part of the analysis may include "over-inclusive" (too many participants in the program) or "under-inclusive" (not enough participants covered in the program).  In Croson, the city of Richmond identified the class to receive the benefit as "Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts."  (Croson @ p 478).  Additionally, "There was no geographic limit to the Plan; an otherwise qualified MBE from anywhere in the United States could avail itself of the 30% set-aside."  (Croson @ p. 478).  In her evaluation of the class, Justice O'Connor said

"It may well be that Richmond has never had an Aleut or Eskimo citizen.  The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose was not in fact to remedy past discrimination."  (Croson @ p. 506)

"If a 30% set-aside was 'narrowly tailored' to compensate black contractors for past discrimination, one may legitimately ask why they are forced to share this 'remedial relief' with an Aleut citizen who moves to Richmond tomorrow?  The gross overinclusiveness of Richmond's racial preference strongly impugns the city's claim of remedial motivation." (Croson @ p. 506)

Burden Placed on Third Parties

If one class receives a preference, another class must pay the price.  However, Chief Justice Burger explained that

"It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms.  When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such 'a sharing of the burden' by innocent parties is not impermissible."  (Fullilove @ p. 484)

However, some Justices may consider some burdens placed on innocent parties as too harsh.  For example, Justice Powell said

"While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives.  That burden is too intrusive.  We therefore hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board's layoff plan is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes - such as the adoption of hiring goals - are available.  For these reasons, the Board's selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause."  (Wygant @ p. 283)

On the other hand, the loss of a job may not harm a narrowly tailored remedy.  For example, Justice Scalia said

"And, of course, a State may 'undo the effects of past discrimination' in the sense of giving the identified victim of state discrimination that which it wrongfully denied him - for example, giving to a previously rejected black applicant the job that, by reason of discrimination, had been awarded to a white applicant, even if this means terminating the latter's employment.  In such a context, the white jobholder is not being selected for disadvantageous treatment because of his race, but because he was wrongfully awarded a job to which another is entitled."  (Croson @ p. 526)

A Justice may throw in another factor if it suits a purpose.  However, the above are, at least, a good starting point.  Even at that, one Justice may view an item differently from another Justice.  Additionally, as time goes by, a Justice's opinion may change slightly or dramatically.  As Justice Scalia explained, this analysis is not scientific.

Copyright © 2001 by Robert M. Antonio



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