ADARAND CONSTRUCTORS, INC. v. SLATER, SEC- RETARY OF TRANSPORTATION, et al.

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Syllabus
ADARAND CONSTRUCTORS, INC. v. SLATER, SEC-
RETARY OF TRANSPORTATION, et al.
on petition for writ of certiorari to the united
states court of appeals for the tenth circuit
No. 99–295. Decided January 12, 2000
The Department of Transportation (DOT) favors contracting with compa-
nies that employ so-called “disadvantaged business enterprises” that are
certified by, inter alios, a state highway agency as owned and controlled
by socially and economically disadvantaged individuals. Federal regu-
lations require that the certifying entity presume members of specified
minority groups to be socially disadvantaged and allow others to be
certified if they can demonstrate social disadvantage. Both third par-
ties and DOT may challenge such findings. Petitioner, whose principal
is a white man, submitted the low bid on a portion of a federal highway
project, but the prime contractor awarded the subcontract to a company
certified by the Colorado Department of Transportation (CDOT) as a
disadvantaged enterprise. Petitioner sued various federal officials, al-
leging that a Subcontractor Compensation Clause required by the Fed-
eral Government—which clause rewards prime contractors for sub-
contracting with enterprises certified as disadvantaged by a State’s
highway or transportation department—and in particular the race-
based presumption that forms its foundation, violated petitioner’s Fifth
Amendment equal protection right. Ultimately, under Adarand Con-
structors, Inc. v. Pen˜ a, 515 U. S. 200, the District Court held that the
clause and the presumption failed strict scrutiny because they were not
narrowly tailored. Adarand Constructors, Inc. v. Pen˜ a, 965 F. Supp.
1556 (Adarand II). While respondents’ appeal was pending, petitioner
filed a second suit in District Court challenging (on the same grounds)
the State’s use of the federal certification guidelines. Shortly thereaf-
ter the State altered its certification program, substituting for the social
disadvantage presumption a requirement that all applicants certify on
their own account that each of the firm’s minority owners has experi-
enced social disadvantage based on the effects of racial, ethnic, or gen-
der discrimination. Taking judicial notice of its holding in Adarand II
that the Federal Government had discriminated against petitioner’s
owner by applying unconstitutional rules and regulations, the District
Court reasoned that petitioner likely was eligible for disadvantaged
business status under Colorado’s system. Petitioner then requested
and received that status from CDOT. Upon learning that CDOT had
given petitioner disadvantaged business status, the Tenth Circuit held

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that the cause of action was moot and vacated the District Court’s Ada-
rand II judgment.
Held: Petitioner’s cause of action is not moot because, under the circum-
stances of this case, it is impossible to conclude that respondents have
borne their burden of establishing that the challenged conduct could not
reasonably be expected to recur. Friends of Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., ante, at 189. If this case is moot,
it is because the Federal Government has accepted CDOT’s certification
of petitioner as a disadvantaged business enterprise, and has thereby
ceased its offending conduct. But DOT accepts only valid certifications
from state agencies, and it has yet to approve—as it must—CDOT’s
procedure. Because there are material differences (not to say incom-
patibility) between that procedure and DOT’s regulations, it is not at all
clear that CDOT’s certification is valid, and hence not at all clear that
the Subcontractor Compensation Clause requires its acceptance. It is
also far from clear that there will be no third-party or DOT challenge
to petitioner’s certification. Indeed, such challenges seem quite proba-
ble now that the Tenth Circuit, by vacating Adarand II, has eliminated
the sole basis for petitioner’s certification in the first place.
Certiorari granted; 169 F. 3d 1292, reversed and remanded.
Per Curiam.
I
Congress has adopted a policy that favors contracting with
small businesses owned and controlled by the socially and
economically disadvantaged. See § 8(d)(1) of the Small Busi-
ness Act, as added by § 7 of Pub. L. 87–305, 75 Stat. 667, and
as amended, 15 U. S. C. § 637(d)(1) (1994 ed., Supp. IV). To
effectuate that policy, the Intermodal Surface Transporta-
tion Efficiency Act of 1991 (ISTEA), Pub. L. 102–240,
§ 1003(b), 105 Stat. 1919, which is an appropriations measure
for the Department of Transportation (DOT), seeks to direct
10 percent of the contracting funds expended on projects
funded in whole or in part by the appropriated funds to
transportation projects employing so-called disadvantaged
business enterprises.1 ISTEA § 1003(b)(1).
1 Congress recently enacted the Transportation Equity Act for the 21st
Century, Pub. L. 105–178, Tit. I, § 1101(b), 112 Stat. 113, the successor
appropriations measure to ISTEA. Although the new Act contains simi-

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To qualify for that status, the small business must be certi-
fied as owned and controlled by socially and economically
disadvantaged individuals. DOT does not itself conduct cer-
tifications, but relies on certifications from two main sources:
the Small Business Administration, which certifies busi-
nesses for all types of federal procurement programs, and
state highway agencies, which certify them for purposes of
federally assisted highway projects. The federal regula-
tions governing these certification programs, see 13 CFR
pt. 124 (1999) (Small Business Administration); 64 Fed. Reg.
5096–5148 (1999) (to be codified in 49 CFR pt. 26) (DOT for
state highway agencies), require that the certifying entity
presume to be socially disadvantaged persons who are black,
Hispanic, Asian Pacific, Subcontinent Asian, Native Ameri-
cans, or members of other groups designated from time to
time by the Small Business Administration. See 13 CFR
§ 124.103(b); 64 Fed. Reg. 5136 (§ 26.67). State highway
agencies must in addition presume that women are socially
disadvantaged. Ibid. Small businesses owned and con-
trolled by persons who are not members of the preferred
groups may also be certified, but only if they can demon-
strate social disadvantage. See 13 CFR § 124.103(c); 64 Fed.
Reg. 5136–5137 (§ 26.67(d)); id., at 5147–5148 (pt. 26, subpt. D,
App. E). Third parties, as well as DOT, may challenge find-
ings of social disadvantage. See 13 CFR § 124.1017(a); 64
Fed. Reg. 5142 (§ 26.87).
II
In 1989, DOT awarded the prime contract for a federal
highway project in Colorado to Mountain Gravel & Construc-
tion Company. The contract included a Subcontractor Com-
pensation Clause—which the Small Business Act requires all
lar provisions, it is technically the provisions of ISTEA that apply to fund-
ing obligated in prior fiscal years but not yet expended.

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federal agencies to include in their prime contracts, see 15
U. S. C. § 637(d)—rewarding the prime contractor for sub-
contracting with disadvantaged business enterprises, see
§ 637(d)(4)(E). Petitioner, whose principal is a white man,
submitted the low bid on a portion of the project, but Moun-
tain Gravel awarded the subcontract to a company that
had previously been certified by the Colorado Department
of Transportation (CDOT) as a disadvantaged business
enterprise.
Petitioner brought suit against various federal officials, al-
leging that the Subcontractor Compensation Clause, and in
particular the race-based presumption that forms its founda-
tion, violated petitioner’s Fifth Amendment right to equal
protection. The Tenth Circuit, applying the so-called inter-
mediate scrutiny approved in some of our cases involving
classifications on a basis other than race, see Mississippi
Univ. for Women v. Hogan, 458 U. S. 718 (1982); Craig v.
Boren, 429 U. S. 190 (1976), upheld the use of the clause and
the presumption. Adarand Constructors, Inc. v. Pen˜ a, 16
F. 3d 1537 (1994). Because DOT’s use of race-based meas-
ures should have been subjected to strict scrutiny, we re-
versed and remanded for the application of that standard.
Adarand Constructors, Inc. v. Pen˜ a, 515 U. S. 200, 237–239
(1995) (Adarand I).
On remand, the District Court for the District of Colo-
rado held that the clause and the presumption failed strict
scrutiny because they were not narrowly tailored. Ada-
rand Constructors, Inc. v. Pen˜ a, 965 F. Supp. 1556 (1997)
(Adarand II). Specifically, the court held the presumption
that members of the enumerated racial groups are socially
disadvantaged to be both overinclusive and underinclusive,
because it includes members of those groups who are not
disadvantaged and excludes members of other groups who
are. Id., at 1580. The District Court enjoined DOT from

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using the clause and its presumption.2 Id., at 1584. Re-
spondents appealed to the Tenth Circuit.
Shortly thereafter, and while respondents’ appeal was still
pending, petitioner filed a second suit in the District Court,
this time naming as defendants certain Colorado officials,
and challenging (on the same grounds) the State’s use of the
federal guidelines in certifying disadvantaged business en-
terprises for federally assisted projects. Adarand Con-
structors, Inc. v. Romer, Civ. No. 97–K–1351 (June 26, 1997).
Shortly after this suit was filed, however, Colorado altered
its certification program in response to the District Court’s
decision in Adarand II. Specifically, the State did away
with the presumption of social disadvantage for certain mi-
norities and women, App. to Pet. for Cert. 109–111, and in
its place substituted a requirement that all applicants certify
on their own account that each of the firm’s majority owners
“has experienced social disadvantage based upon the effects
of racial, ethnic or gender discrimination,” id., at 110. Colo-
rado requires no further showing of social disadvantage by
any applicant.
A few days after Colorado amended its certification proce-
dure, the District Court held a hearing on petitioner’s motion
for a preliminary injunction in Romer. The District Court
took judicial notice of its holding in Adarand II that the Fed-
eral Government had discriminated against petitioner’s
owner “by the application of unconstitutional rules and regu-
lations.” App. to Pet. for Cert. 136. As a result of that
race-based discrimination, the District Court reasoned, peti-
tioner likely was eligible for disadvantaged business status
under Colorado’s system for certifying businesses for feder-
ally assisted projects—the system at issue in Romer. App.
to Pet. for Cert. 137. The District Court therefore denied
2 Before the Tenth Circuit, the parties disagreed as to whether the scope
of the District Court’s remedial order was appropriate. In characterizing
that order as we do here, we do not intend to take a position in that
dispute.

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petitioner’s request for a preliminary injunction. Id., at 138.
Petitioner then requested and received disadvantaged busi-
ness status from CDOT.
Meanwhile, respondents’ appeal from the District Court’s
decision in Adarand II was pending before the Tenth Cir-
cuit. Upon learning that CDOT had given petitioner
disadvantaged business status, the Tenth Circuit held that
the cause of action was moot, and vacated the District
Court’s judgment favorable to petitioner in Adarand II.
169 F. 3d 1292, 1296–1297, 1299 (CA10 1999). Petitioner
filed a petition for certiorari.
III
In dismissing the case as moot, the Tenth Circuit relied
on the language of the Subcontractor Compensation Clause,
which provides that “[a] small business concern will be con-
sidered a [disadvantaged business enterprise] after it has
been certified as such by . . . any State’s Department of
Highways/Transportation.” Id., at 1296. Because CDOT
had certified petitioner as a disadvantaged business enter-
prise, the court reasoned, the language of the clause indi-
cated that the Federal Government also had accepted peti-
tioner’s certification for purposes of federal projects. As a
result, petitioner could no longer demonstrate “ ‘an invasion
of a legally protected interest’ that is sufficiently ‘concrete
and particularized’ and ‘actual or imminent’ ” to establish
standing. Arizonans for Official English v. Arizona, 520
U. S. 43, 64 (1997) (quoting Lujan v. Defenders of Wildlife,
504 U. S. 555, 560 (1992)). Because, the court continued,
petitioner could not demonstrate such an invasion, its cause
of action was moot. 169 F. 3d, at 1296–1297.
In so holding, the Tenth Circuit “confused mootness with
standing,” Friends of Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., ante, at 189, and as a result placed the
burden of proof on the wrong party. If this case is moot,
it is because the Federal Government has accepted CDOT’s

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certification of petitioner as a disadvantaged business enter-
prise, and has thereby ceased its offending conduct. Volun-
tary cessation of challenged conduct moots a case, however,
only if it is “absolutely clear that the allegedly wrongful be-
havior could not reasonably be expected to recur.” United
States v. Concentrated Phosphate Export Assn., Inc., 393
U. S. 199, 203 (1968) (emphasis added). And the “ ‘heavy
burden of persua[ding]’ the court that the challenged conduct
cannot reasonably be expected to start up again lies with the
party asserting mootness.” Friends of Earth, ante, at 189
(emphasis added) (quoting Concentrated Phosphate Export
Assn., supra, at 203).
Because respondents cannot satisfy this burden, the Tenth
Circuit’s error was a crucial one. As common sense would
suggest, and as the Tenth Circuit itself recognized, DOT ac-
cepts only “valid certification[s]” from state agencies. 169
F. 3d, at 1298. As respondents concede, however, see Brief
in Opposition 13–14, n. 6, DOT has yet to approve—as it
must—CDOT’s procedure for certifying disadvantaged busi-
ness enterprises, see 64 Fed. Reg. 5129 (1999) (49 CFR
§ 26.21(b)(1)) (“[The State] must submit a [disadvantaged
business enterprise] program conforming to this part by Au-
gust 31, 1999 to the concerned operating administration”).
DOT has promulgated regulations outlining the procedure
state highway agencies must follow in certifying firms as dis-
advantaged business enterprises. See 64 Fed. Reg. 5096–
5148 (pt. 26). As described earlier, those regulations
require the agency to presume that “women, Black Ameri-
cans, Hispanic Americans, Native Americans, Asian-Pacific
Americans, Subcontinent Asian Americans, or other minori-
ties found to be disadvantaged by the [Small Business Ad-
ministration]” are socially disadvantaged. Id., at 5136
(§ 26.67(a)(1)). Before individuals not members of those
groups may be certified, the state agency must make individ-
ual determinations as to disadvantage. See id., at 5136–
5137 (§ 26.67(d)) (“In such a proceeding, the applicant firm

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has the burden of demonstrating to [the state highway
agency], by a preponderance of the evidence, that the individ-
uals who own and control it are socially and economically
disadvantaged”); id., at 5147–5148 (pt. 26, subpt. D, App. E)
(providing list of “elements” that highway agencies must
consider in making individualized determinations of social
disadvantage). CDOT’s new procedure under which peti-
tioner was certified applies no presumption in favor of minor-
ity groups, and accepts without investigation a firm’s self-
certification of entitlement to disadvantaged business status.
See App. to Pet. for Cert. 109–111. Given the material dif-
ferences (not to say incompatibility) between that procedure
and the requirements of the DOT regulations, it is not at all
clear that CDOT’s certification is a “valid certification,” and
hence not at all clear that the Subcontractor Compensation
Clause requires its acceptance.
Before the Tenth Circuit, respondents took pains to “ex-
pres[s] no opinion regarding the correctness of Colorado’s de-
termination that [petitioner] is entitled to [disadvantaged
business] status.” Motion by the Federal Appellants to
Dismiss Appeal as Moot and to Vacate the District Court
Judgment in No. 97–1304, p. 3, n. 2. Instead, they stated
flatly that “in the event there is a third-party challenge to
[petitioner’s] certification as a [disadvantaged business en-
terprise] and the decision on the challenge is appealed to
DOT, DOT may review the decision to determine whether
the certification was proper.” Id., at 3–4, n. 2. In addition,
DOT itself has the power to require States to initiate pro-
ceedings to withdraw a firm’s disadvantaged status if there
is “reasonable cause to believe” that the firm “does not meet
the eligibility criteria” set forth in the federal regulations.
64 Fed. Reg. 5142 (§ 26.87(c)(1)). Given the patent incompat-
ibility of the certification with the federal regulations, it is
far from clear that these possibilities will not become reality.
Indeed, challenges to petitioner’s disadvantaged business
status seem quite probable now that the Tenth Circuit, by

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vacating Adarand II, has eliminated the sole basis for peti-
tioner’s certification in the first place.
The Tenth Circuit dismissed these possibilities as insuffi-
ciently particular and concrete to grant standing and there-
fore “too conjectural and speculative to avoid a finding of
mootness.” 169 F. 3d, at 1298 (internal quotation marks
omitted). As we recently noted in Friends of the Earth,
however, “[t]he plain lesson of [our precedents] is that there
are circumstances in which the prospect that a defendant
will engage in (or resume) harmful conduct may be too specu-
lative to support standing, but not too speculative to over-
come mootness.” Ante, at 190. Because, under the cir-
cumstances of this case, it is impossible to conclude that
respondents have borne their burden of establishing that it
is “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur,” ante, at 189, peti-
tioner’s cause of action remains alive.
* * *
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. Such action on grounds
of mootness would be justified only if it were absolutely clear
that the litigant no longer had any need of the judicial protec-
tion that it sought. Because that is not the case here, the
petition for writ of certiorari is granted, the judgment of
the United States Court of Appeals for the Tenth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.