The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_1841/93_1841.zc1

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SUPREME COURT OF THE UNITED STATES
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No. 93-1841
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ADARAND CONSTRUCTORS, INC., PETITIONER v.
FEDERICO PENA, SECRETARY OF
 TRANSPORTATION, et al.
on writ of certiorari to the united states court
of appeals for the tenth circuit
[June 12, 1995]

  Justice Thomas, concurring in part and concurring in
the judgment.
  I agree with the majority's conclusion that strict
scrutiny applies to all government classifications based
on race.  I write separately, however, to express my
disagreement with the premise underlying Justice
Stevens' and Justice Ginsburg's dissents: that there is
a racial paternalism exception to the principle of equal
protection.  I believe that there is a -moral [and]
constitutional equivalence,- post, at 3, (Stevens, J.,
dissenting), between laws designed to subjugate a race
and those that distribute benefits on the basis of race in
order to foster some current notion of equality.  Govern-
ment cannot make us equal; it can only recognize,
respect, and protect us as equal before the law.
  That these programs may have been motivated, in
part, by good intentions cannot provide refuge from the
principle that under our Constitution, the government
may not make distinctions on the basis of race.  As far
as the Constitution is concerned, it is irrelevant whether
a government's racial classifications are drawn by those
who wish to oppress a race or by those who have a
sincere desire to help those thought to be disadvantaged.
There can be no doubt that the paternalism that
appears to lie at the heart of this program is at war
with the principle of inherent equality that underlies
and infuses our Constitution.  See Declaration of
Independence (-We hold these truths to be self-evident,
that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that
among these are Life, Liberty, and the pursuit of
Happiness-).
  These programs not only raise grave constitutional
questions, they also undermine the moral basis of the
equal protection principle.  Purchased at the price of
immeasurable human suffering, the equal protection
principle reflects our Nation's understanding that such
classifications ultimately have a destructive impact on
the individual and our society.  Unquestionably,
-[i]nvidious [racial] discrimination is an engine of
oppression,- post, at 3.  It is also true that -[r]emedial-
racial preferences may reflect -a desire to foster equality
in society,- ibid.  But there can be no doubt that racial
paternalism and its unintended consequences can be as
poisonous and pernicious as any other form of discrimi-
nation.  So-called -benign- discrimination teaches many
that because of chronic and apparently immutable
handicaps, minorities cannot compete with them without
their patronizing indulgence.  Inevitably, such programs
engender attitudes of superiority or, alternatively,
provoke resentment among those who believe that they
have been wronged by the government's use of race.
These programs stamp minorities with a badge of
inferiority and may cause them to develop dependencies
or to adopt an attitude that they are -entitled- to prefer-
ences.  Indeed, Justice Stevens once recognized the
real harms stemming from seemingly -benign- discrimi-
nation.  See Fullilove v. Klutznick, 448 U. S. 448, 545
(1980) (Stevens, J., dissenting) (noting that -remedial-
race legislation -is perceived by many as resting on an
assumption that those who are granted this special
preference are less qualified in some respect that is
identified purely by their race-).
  In my mind, government-sponsored racial discrimi-
nation based on benign prejudice is just as noxious as
discrimination inspired by malicious prejudice.  In each
instance, it is racial discrimination, plain and simple.