Strict Scrutiny and Compelling Interest

In one line

American law treats a preference for a disadvantaged group and a preference against one as the same constitutional event, and reviews both at the highest level.

In the wording a student can write in an exam: strict scrutiny requires a racial classification to serve a compelling governmental interest and to be narrowly tailored to further that interest; it applies to every racial classification, federal, State or local, and whether the classification burdens or benefits the group in question.

The three propositions

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), gathered the doctrine into three propositions.

Skepticism. Any preference based on racial or ethnic criteria must necessarily receive a most searching examination.

Consistency. The standard of review under the equal protection clause is not dependent on the race of those burdened or benefited by a particular classification.

Congruence. Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment, so the federal government is held to the same standard as a State.

Taken together, the Court said, these lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.

Where consistency came from

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), is the source of the second proposition. Richmond required prime contractors on city contracts to subcontract at least thirty per cent of the value to minority business enterprises. The plan was struck down: strict scrutiny applied because the standard does not depend on who is burdened or benefited, and the plan rested on no compelling interest and was not narrowly tailored.

The reason offered for consistency is epistemic as much as moral. A court cannot reliably distinguish a benign classification from an invidious one, since every classification is defended as benign by those who make it; and a group in political control may describe a preference for itself as remedial. Applying one standard to all racial classifications removes the need to judge motive.

The reason against it is that a rule which treats a measure dismantling a hierarchy the same as one building it is blind to the only fact that matters, which is the antisubordination argument in [Formal and Substantive Equality].

What counts as compelling

Remedying the government's own identified discrimination. Accepted, but it requires a strong basis in evidence: an identified wrong by the identified actor, and not a general assertion that discrimination has occurred in the society or in the industry.

Remedying general societal discrimination. Rejected as too amorphous, on the ground that a remedy with no defined wrongdoer and no defined victim has no logical stopping point and would support preferences indefinitely.