Adarand Constructors, Inc. v. Slater
The Supreme Court revived a white-owned construction company's long-running challenge to a federal program that gave financial incentives to hire minority-owned subcontractors, ruling that a state's last-minute certification of the company as "disadvantaged" did not make the case moot.
The Court said the appeals court had wrongly required the company to prove ongoing harm rather than requiring the government to prove the challenged program's effects could never recur, sending the case back for further proceedings.
“It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again.”
The Court explains why it is reluctant to dismiss the long-running case as moot.
How it got here: After a district court struck down the federal program, Colorado revised its certification rules, certified the company as disadvantaged, and the Tenth Circuit then vacated the district court's ruling as moot.
The Case in Depth
What happened
A construction company owned by a white man submitted the lowest bid for a subcontract on a federally funded Colorado highway project but lost the job to a company certified as a "disadvantaged business enterprise" under a program that presumed certain racial minorities were socially disadvantaged. The company sued, arguing the presumption violated its constitutional right to equal treatment, in a dispute that had already reached the Supreme Court once before.
The question before the Court
After a state agency certified a contractor as a "disadvantaged" business under looser rules, did that end the contractor's long-running lawsuit over race-based subcontracting preferences?
Why it matters
The ruling keeps alive one of the most closely watched constitutional challenges to race-conscious federal contracting programs, meaning courts will keep scrutinizing how the government defines and awards "disadvantaged business" status. It also clarifies, for any litigant, that a defendant cannot easily escape a lawsuit simply by tweaking its conduct at the last minute.
What changes now
The case goes back to the lower courts for further proceedings on the merits of the constitutional challenge to the race-based contracting program, since the Supreme Court only decided that the case was not moot. The underlying question of whether the program is constitutional was not resolved by this ruling and remains open for further litigation.
What this does not decide
This decision does not resolve whether the federal program's race-based presumptions are constitutional. It only holds that the lawsuit challenging the program was not moot, so the constitutional question remains open for the lower courts to address on remand.
How the Court got there
The legal reasoning, step by step
- The Court explained that the appeals court mixed up two different legal doctrines: standing, which asks whether a plaintiff has suffered a concrete injury to get into court, and mootness, which asks whether a case that started out live has since become resolved.
- Because the case became arguably moot only through the government's own change in behavior (accepting the state's new certification), the Court applied the voluntary-cessation rule: a case is only moot if it is absolutely clear the challenged conduct could not reasonably start up again, and the party claiming mootness bears that heavy burden.
- The Court found the federal transportation agency had not actually approved Colorado's new certification procedure, and that procedure was materially different from the federal rules the agency requires state agencies to follow, so it was unclear the company's certification was even valid.
- Because the federal agency retained the power to review or reject the certification, and had reserved the right to do exactly that, the possibility of renewed conflict over the company's status was not merely speculative.
- The Court concluded that the government had not met its heavy burden of showing the challenged conduct could not recur, so the case remained a live dispute rather than a moot one.
Doctrinal impact
Cases affected by this decision
Reaffirms Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.
Relies on this recent decision's rule that mootness and standing are distinct doctrines with different burdens.
Reaffirms United States v. Concentrated Phosphate Export Assn., Inc. (393 U. S. 199)
Reapplies the rule that voluntary cessation of conduct only moots a case if recurrence is absolutely clear to be impossible.