ADARAND CONSTRUCTORS, INC. v. MINETA, SECRETARY OF TRANSPORTATION, et al.

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103 OCTOBER TERM, 2001
Syllabus
ADARAND CONSTRUCTORS, INC. v. MINETA,
SECRETARY OF TRANSPORTATION, et al.
certiorari to the united states court of appeals for
the tenth circuit
No. 00–730. Argued October 31, 2001—Decided November 27, 2001
In Adarand Constructors, Inc. v. Pen˜ a, 515 U. S. 200 (Adarand I), this
Court held that strict scrutiny governs whether race-based classifica-
tions violate equal protection and remanded for a determination
whether the race-based components of the Department of Transporta-
tion’s (DOT’s) Disadvantaged Business Enterprise (DBE) program could
survive such review. The District Court then found that no such com-
ponent could survive, but the Tenth Circuit vacated and this Court again
reversed and remanded, Adarand Constructors, Inc. v. Slater, 528 U. S.
216 (per curiam). Subsequently, the Tenth Circuit held, inter alia,
that new regulations issued under the Transportation Equity Act for
the 21st Century (TEA–21) pertain almost exclusively to the use of fed-
eral funds for highway projects let by States and localities, the only
relevant aspect of the DBE program under review; that petitioner
lacked standing and had waived its right to challenge any other race-
conscious program; and that under the new regulatory framework, the
DBE program being reviewed was constitutional. When this Court
again granted certiorari to decide whether the Tenth Circuit misapplied
Adarand I, it appeared that petitioner was challenging the DBE pro-
gram as it pertains to the use of federal funds for state and local high-
way projects. Petitioner now asserts that it is challenging only the
statutes and regulations pertaining to DOT’s direct procurement of
highway construction on federal lands.
Held: The writ of certiorari is dismissed as improvidently granted. The
direct procurement statutes and regulations are quite different from the
ones the Tenth Circuit reviewed. While state and local procurement is
governed by the Transportation Secretary under TEA–21, direct fed-
eral procurement is governed by the Small Business Act and regulations
promulgated thereunder. The shift in this case’s posture requires dis-
missal of the writ for two reasons. First, this Court held in Adarand
I that application of the strict scrutiny standard should be addressed in
the first instance by the lower courts. However, the Tenth Circuit has
not considered whether race-based programs applicable to direct federal
contracting could satisfy strict scrutiny, and the Government has not
addressed such programs in its merits brief. Second, to reach the mer-
its of any challenge to the direct procurement statutes and regulations

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104 ADARAND CONSTRUCTORS, INC. v. MINETA
Syllabus
would require a threshold examination of standing, but petitioner, in its
certiorari petition, did not dispute the Tenth Circuit’s holding that it
lacked standing to make such a challenge. This Court is obliged to
examine standing sua sponte where it has erroneously been presumed
below, but not simply to reach an issue for which standing has been
denied below. Mindful that this is a Court of final review, not first view,
the Court thus declines to reach the merits of the present challenge.
Certiorari dismissed. Reported below: 228 F. 3d 1147.
William Perry Pendley argued the cause and filed briefs
for petitioner.
Solicitor General Olson argued the cause for respondents.
With him on the brief were Assistant Attorney General
Boyd, Deputy Solicitor General Clement, Jeffrey A. Lam-
ken, Mark L. Gross, Teresa Kwong, Paul M. Geier, Peter J.
Plocki, Peter S. Smith, and Edward V. A. Kussy.*
*Briefs of amici curiae urging reversal were filed for the Associated
General Contractors of America, Inc., by John G. Roberts, Jr., and Michael
E. Kennedy; for the Center for Individual Rights by Michael E. Rosman;
for the Claremont Institute Center for Constitutional Jurisprudence by
Edwin Meese III; for GEOD Corp. et al. by Martin S. Kaufman and Bris-
coe R. Smith; and for the Pacific Legal Foundation et al. by John H. Find-
ley and Sharon L. Browne.
Briefs of amici curiae urging affirmance were filed for the City and
County of Denver by Eileen Penner and J. Wallace Wortham, Jr.; for the
Lawyers’ Committee for Civil Rights Under Law et al. by John A. Payton,
Charles T. Lester, Jr., Norman Redlich, Barbara R. Arnwine, Thomas J.
Henderson, Steven R. Shapiro, Christopher A. Hansen, Antonia Hernan-
dez, Dennis C. Hayes, and Elliot M. Mincberg; for the NOW Legal Defense
and Education Fund et al. by Martha F. Davis and Mitchell A. Lowenthal;
for the Minority Business Enterprise Legal Defense and Education Fund,
Inc., et al. by Bradley S. Phillips, Paul J. Watford, and Fred A. Rowley,
Jr.; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine
R. Jones, Theodore M. Shaw, Norman J. Chachkin, James L. Cott, and
Robert H. Stroup; for the National League of Cities et al. by Richard
Ruda, James I. Crowley, and Robert Brauneis; for the Office of Communi-
cation of the United Church of Christ et al. by David Honig and Shelby
D. Green; for the Women First National Legislative Committee et al. by
Edward W. Correia; and for Senator Max Baucus et al. by Mr. Correia.
Briefs of amici curiae were filed for the National Asian Pacific Ameri-
can Legal Consortium et al. by Mark A. Packman, Jonathan M. Cohen,

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105 Cite as: 534 U. S. 103 (2001)
Per Curiam
Per Curiam.
We granted certiorari to review for a second time whether
the Court of Appeals was correct when it concluded that
the Department of Transportation’s (DOT’s) Disadvantaged
Business Enterprise (DBE) program is consistent with the
constitutional guaranty of equal protection. But upon full
briefing and oral argument we find that the current pos-
ture of this case prevents review of that important question.
To address it would require a threshold inquiry into issues
decided by the Court of Appeals but not presented in the
petition for certiorari. We therefore dismiss the writ of cer-
tiorari as improvidently granted.
Six years ago in Adarand Constructors, Inc. v. Pen˜ a, 515
U. S. 200 (1995) (Adarand I), we held that strict scrutiny
governs whether race-based classifications violate the equal
protection component of the Fifth Amendment’s Due Process
Clause. See id., at 235 (“Federal racial classifications, like
those of a State, must serve a compelling governmental
interest, and must be narrowly tailored to further that in-
terest”). We remanded for a determination whether the
race-based components of the DOT’s DBE program could
survive this standard of review.
On remand, the District Court for the District of Colorado
found that no such race-based component then in operation
could so survive. Adarand Constructors, Inc. v. Pen˜ a, 965
F. Supp. 1556 (1997). The Court of Appeals vacated the
District Court’s judgment, reasoning that petitioner’s cause
of action had been mooted because the Colorado Department
of Transportation had recently certified petitioner as a DBE.
Adarand Constructors, Inc. v. Slater, 169 F. 3d 1292, 1296–
1297 (CA10 1999). Finding it not at all clear that petition-
er’s certification was valid under DOT regulations, we again
and Vincent A. Eng; for Social Science and Comparative Law Scholars by
Clark D. Cunningham; for the Southeastern Legal Foundation, Inc., by
Walter H. Ryland and Valle Simms Dutcher; and for L. S. Lee, Inc., by
Mr. Ryland.

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106 ADARAND CONSTRUCTORS, INC. v. MINETA
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granted certiorari, reversed the Court of Appeals, and re-
manded for a determination on the merits consistent with
Adarand I. Adarand Constructors, Inc. v. Slater, 528 U. S.
216 (2000) (per curiam).
Following the submission of supplemental briefs address-
ing statutory and regulatory changes that had occurred since
the District Court’s 1997 judgment favorable to petitioner,
the Court of Appeals affirmed in part and reversed in part.
228 F. 3d 1147 (CA10 2000). The Court of Appeals agreed
with the District Court that the DOT’s DBE program was
unconstitutional as it was administered in 1997. It further
agreed that the automatic use of financial incentives to en-
courage the award of subcontracts to DBEs, as originally
contemplated by the DOT’s Subcontractor Compensation
Clause (SCC) program, was “unconstitutional under Ada-
rand [I’s] strict standard of scrutiny.” Id., at 1187. The
Secretary of Transportation never challenged these rulings
and has since discontinued any and all use of the SCC pro-
gram. Brief for Respondents 2, 10, 13, 20, n. 3, 23. See also
228 F. 3d, at 1194 (“The government maintains, and Adarand
does not dispute, that the SCC, which spawned this litigation
in 1989, is no longer in use”); Tr. of Oral Arg. 25 (“[SCCs]
ha[ve been] abandoned in all respects, [they] have not been
justified, and the United States Government is not employ-
ing [them]”).
The Court of Appeals next turned its attention to new
regulations issued by the Secretary of Transportation under
the Transportation Equity Act for the 21st Century (TEA–
21), § 1101(b)(1), 112 Stat. 113. See 49 CFR pt. 26 (1999).
These regulations pertain almost exclusively to use of fed-
eral funds for highway projects let by States and localities,
which the Court of Appeals found to be the only “relevant”
aspect of the DBE program under review. 228 F. 3d, at
1160. The Court of Appeals further noted that petitioner
either lacked standing or had waived its right to chal-
lenge any other race-conscious program. Ibid. Finally, the

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Court of Appeals held that, by virtue of the new regulatory
framework under which the DOT’s state and local DBE pro-
gram now operates, that program passed constitutional mus-
ter under Adarand I. 228 F. 3d, at 1176–1187.
We again granted certiorari to decide whether the Court
of Appeals misapplied the strict scrutiny standard an-
nounced in Adarand I. 532 U. S. 941 (2001). We antici-
pated that we would be able to review the same “relevant
program” that was addressed by the Court of Appeals.1
But since certiorari was granted there has been a shift in
the posture of the case that precludes such review.
Both parties agree that the Court of Appeals confined its
opinion to the constitutionality of the DOT’s DBE pro-
gram as it pertains to the use of federal funds for highway
projects let by States and localities. See Brief for Peti-
tioner 15–17; Brief for Respondents 19–23. It is clear from
its opinion that the Court of Appeals considered no other
programs; its strict scrutiny analysis relies almost exclu-
sively on regulations designed to channel benefits, through
States and localities, to firms owned by individuals who
hold themselves out to be socially and economically disad-
vantaged. See 228 F. 3d, at 1176–1188. These regulations
clearly permit the award of contracts based on race-
conscious measures in jurisdictions where petitioner oper-
ates, and, as the Government concedes, provide petitioner
with a potential basis for prospective relief, at least to the
extent petitioner challenges them. Brief for Respondents 3.
It appeared at the certiorari stage that petitioner was in-
deed challenging these statutes and regulations. Nothing
1 We granted certiorari to review the following questions:
“1. Whether the 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 discrimination?
“2. Whether the United States Department of Transportation’s current
Disadvantaged Business Enterprise program is narrowly tailored to serve
a compelling governmental interest?” 532 U. S. 968 (2001).

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in the petition for certiorari contested the Court of Appeals’
determination that petitioner lacked standing to challenge
the statutes and regulations relating to any other race-
conscious program. The petition for certiorari simply noted
the Court of Appeals’ determination on this ground as a
matter of fact, without further comment. Pet. for Cert. 4,
nn. 2, 3.
Petitioner now asserts, however, that it is not challeng-
ing any part of DOT’s state and local procurement program.
Instead, it claims to be challenging only the statutes and
regulations that pertain to DOT’s direct procurement of
highway construction on federal lands. Brief for Petitioner
12–17. But the statutes and regulations relating to direct
procurement are quite different from the statutes and regu-
lations reviewed by the Court of Appeals. In particular,
while procurement by States and localities is governed by
the regulations issued by the Secretary of Transportation
under TEA–21, direct federal procurement is governed by
the Small Business Act, including §§ 8(d)(4)–(6), as added by
§ 211 of Pub. L. 95–507, 92 Stat. 1768, and as amended, 15
U. S. C. §§ 637(d)(4)–(6) (1994 ed. and Supp. V), and the regu-
lations promulgated thereunder, 48 CFR pt. 19 (1998).
This shift in posture requires dismissal of the writ for
two reasons. First, the Court of Appeals has not consid-
ered whether the various race-based programs applicable
to direct federal contracting could satisfy strict scrutiny.
See 228 F. 3d, at 1189, n. 35 (“There is no indication from
any of the parties in their briefs or elsewhere that the partic-
ular requirements of paragraphs (4)–(6) of § 8(d) are at issue
in the instant lawsuit”) (citing 15 U. S. C. §§ 637(d)(4)–(6)
(1994 ed. and Supp. IV)); see also 228 F. 3d, at 1188–1189,
n. 32 (“The parties have not addressed paragraph (4) of § 8(d)
at all, and . . . we do not address it in great detail”). The
Government also has not addressed such programs in its
brief on the merits. Brief for Respondents 38–50. Peti-
tioner urges us to take on this task ourselves, and apply

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strict scrutiny in the first instance to a complex web of
statutes and regulations without benefit of any lower court
review. But in Adarand I, 515 U. S., at 238–239, we said
that application of our strict scrutiny standard “should be
addressed in the first instance by the lower courts.” We
ordinarily “do not decide in the first instance issues not de-
cided below.” National Collegiate Athletic Assn. v. Smith,
525 U. S. 459, 470 (1999). See also Glover v. United States,
531 U. S. 198, 205 (2001) (“In the ordinary course we do not
decide questions neither raised nor resolved below”); You-
akim v. Miller, 425 U. S. 231 (1976) (per curiam) (same).
Second, to reach the merits of any challenge to statutes
and regulations relating to direct federal procurement would
require a threshold examination of whether petitioner has
standing to challenge such statutes and regulations. Peti-
tioner has sought to show that it does have such standing,
but this showing was not made (and no argument was ever
advanced) until three weeks before oral argument. It was
made then in a reply brief submitted with a lodging of volu-
minous evidence that has never been presented to any lower
court. Reply Brief for Petitioner 1–9. The Government
has responded with a lodging of its own, contending that no
race-conscious measures are used for direct procurement in
any jurisdiction in which petitioner does business.2 What-
ever the merits of these competing positions, the petition for
certiorari nowhere disputed the Court of Appeals’ explicit
2 The Government states that a “Benchmark Study” completed by the
Department of Commerce, see 64 Fed. Reg. 52806 (1999); 63 Fed. Reg.
35714 (1998), prohibits the use of race-conscious mechanisms for direct
federal procurement of highway construction projects in any State other
than Alabama, Mississippi, Louisiana, Arkansas, Kentucky, Tennessee,
Texas, and Oklahoma, in none of which does petitioner conduct operations.
Brief for Respondents 8–10, 22. At oral argument, the Government
stated its view that the §§ 8(d)(4)–(6) programs in their current form would
not meet the constitutional requirement of “narrow tailoring” if used in
jurisdictions where the Benchmark Study has found no disparity suggest-
ing discrimination or its continuing effects. Tr. of Oral Arg. 29–30.

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holding that petitioner lacked standing to challenge the very
provisions petitioner now asks us to review. 228 F. 3d, at
1160 (“Nor are we presented with any indication that Ada-
rand has standing to challenge paragraphs (4)–(6) of 15
U. S. C. § 637(d)”).
We are obliged to examine standing sua sponte where
standing has erroneously been assumed below. See Steel
Co. v. Citizens for Better Environment, 523 U. S. 83, 95
(1998) (“ ‘[I]f the record discloses that the lower court was
without jurisdiction this court will notice the defect, al-
though the parties make no contention concerning it’ ”) (quot-
ing United States v. Corrick, 298 U. S. 435, 440 (1936)). But
we do not examine standing sua sponte simply to reach an
issue for which standing has been denied below—exactly
what petitioner asks that we do here. See, e. g., Izumi Sei-
mitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510
U. S. 27, 31–32 (1993) (per curiam) (discussing this Court’s
Rule 14.1(a) and the “heavy presumption” against reaching
threshold questions not presented in the petition for certio-
rari (internal quotation marks and citations omitted)).
“Mindful that this is a court of final review and not first
view,” Matsushita Elec. Industrial Co. v. Epstein, 516 U. S.
367, 399 (1996) (Ginsburg, J., concurring in part and dis-
senting in part), we thus decline to reach the merits of peti-
tioner’s present challenge. Petitioner points out that this
case presents questions of fundamental national importance
calling for final resolution by this Court. But the impor-
tance of an issue should not distort the principles that con-
trol the exercise of our jurisdiction. To the contrary, “by
adhering scrupulously to the customary limitations on our
discretion regardless of the significance of the underlying
issue, we promote respect . . . for the Court’s adjudicatory
process.” Adams v. Robertson, 520 U. S. 83, 92, n. 6 (1997)
(per curiam) (internal quotation marks omitted). We also
“ensure that we are not tempted to engage in ill-considered

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decisions of questions not presented in the petition.” Izumi
Seimitsu, supra, at 34.
For the foregoing reasons, the writ of certiorari is dis-
missed as improvidently granted.
It is so ordered.