Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College

Supreme Court briefJul 27, 2022

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Nos. 20-1199 & 21-707

_________________________________________

In The

Supreme Court of the United States

------------------------♦-----------------------STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

PRESIDENT AND FELLOWS OF HARVARD COLLEGE,

Respondents.

------------------------♦-----------------------STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

UNIVERSITY OF NORTH CAROLINA, et al.,

Respondents.

------------------------♦-----------------------On Writ Of Certiorari To The United States Court Of

Appeals For The First Circuit And The United States

Court Of Appeals For The Fourth Circuit

------------------------♦-----------------------BRIEF OF AMICI CURIAE HUMAN RIGHTS

ADVOCATES, ET AL., IN SUPPORT OF

RESPONDENTS

------------------------♦-----------------------Constance de la Vega*

Neil A.F. Popović

Frank C. Newman Int’l

Sheppard, Mullin, Richter

Human Rights Clinic

& Hampton LLP

University of San

Four Embarcadero

Francisco School of Law

Center, 17th Floor

2130 Fulton Street

San Francisco, California

San Francisco, CA 94117

94111-4109

415-422-2296

415-434-9100

delavega@usfca.edu

*Counsel of Record

Counsel for Amici Curiae

(Additional Amici Listed On Inside Cover)

Additional Amici

Human Rights First

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ................... 1

SUMMARY OF ARGUMENT .......................... 3

ARGUMENT .................................................... 4

I. INTERNATIONAL AND COMPARATIVE

FOREIGN LAW ARE RELEVANT TO

THE SUPREME COURT’S

CONSIDERATION OF THE

CONSTITUTIONALITY OF HARVARD

AND UNC’S ADMISSIONS

PROGRAMS........................................... 4

II. CONSIDERATIONS OF RACE IN

ADMISSIONS DECISIONS ARE

CONSISTENT WITH THE UNITED

STATES’ INTERNATIONAL HUMAN

RIGHTS COMMITMENTS ................... 8

Human Rights Treaties Ratified

by the United States Require the

Adoption of Race-Conscious

Measures ..................................... 8

Considerations of Race Are

Consistent with the

International Covenant on

the Elimination of All

Forms of Racial

Discrimination.................. 9

Considerations of Race Are

Permissible and

Encouraged under The

International Covenant on

Civil and Political Rights

........................................ 18

Other Independent Human

Rights Experts Have

Recommended Considerations of

Race in Higher Education to

Address Inequality .................... 20

Racial Discrimination and

Inequality Still Persist in the

United States ............................ 21

Harvard University and The

University of North Carolina’s

Holistic, Race-Conscious

Approach to Admissions is

Consistent with International

Treaty Obligations and

Recommendations ..................... 24

III. OTHER JURISDICTIONS AFFIRM THE

PROPRIETY AND BENEFITS OF

RACE-CONSCIOUS APPROACHES TO

ADVANCE EQUALITY AND NONDISCRIMINATION ............................. 28

CONCLUSION ............................................... 32

iii

TABLE OF AUTHORITIES

U.S. Cases

Page(s)

Cal. Fed. Savings & Loan Ass’n v. Guerra

479 U.S. 272 (1987) ................................................ 1

Fisher v. Univ. of Tex. at Austin

579 U.S. 365 (2016) ........................................ 15, 21

Fisher v. Univ. of Texas at Austin

570 U.S. 297 (2013) .............................................. 28

Graham v. Florida

560 U.S. 48 (2010) .............................................. 1, 4

Grutter v. Bollinger

539 U.S. 306 (2003) (Ginsburg, J.,

concurring) ................................................... 1, 7, 14

Lawrence v. Texas

539 U.S. 558 (2003) ................................................ 6

Roper v. Simmons

543 U.S. 551 (2005) ............................................ 1, 6

Sosa v. Alvarez-Machain

542 U.S. 692 (2004) ................................................ 6

Students for Fair Admissions, Inc. v. President

& Fellows of Harvard Coll.

980 F.3d 157 (1st Cir. 2020) ................................ 27

Students for Fair Admissions, Inc. v. Univ. of

N. Carolina

567 F. Supp. 3d 580 (M.D.N.C. 2021) ................. 26

United States v. Alvarez-Machain

504 U.S. 655 (1992) ................................................ 9

United States v. Rauscher

119 U.S. 407 (1886) ................................................ 9

Foreign Jurisdiction Cases

Badeck & Others

2000 E.C.R. I-1875, [2001] 2 C.M.L.R. 6 All

ER (EC) 289, 2000 WL 281317 (E.C.J.

2000) ............................................................... 29, 30

Marschall v. Land Nordrhein-Westfalen

1997 E.C.R. I-6363 All ER (EC) 865 (E.C.J.

1997) ..................................................................... 29

Motala & Another v. Univ. of Natal

1995 (3) BCLR 374(D) (Durban Sup. Ct.),

1995 SACLR LEXIS 256 (S. Afr. Feb. 24,

1995) ..................................................................... 30

Constitution, Statutes, and Treatises

Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 § 15(2),

being Schedule B to the Canada Act, 1982,

c.11 (U.K.)............................................................. 31

The Declaration of Independence, para. 1 (U.S.

1776) ....................................................................... 5

India Const. art. 15, cl. 5 (India) .............................. 31

Internatinoal Covenant on the Elimination of

All Forms of Racial Discrimination,

adopted, Dec. 21, 1965, S. Treaty Doc. No.

95-18, 660 U.N.T.S. 195 ......................................... 9

International Covenant on Civil and Political

Rights, adopted, Dec. 16, 1966, S. Treaty

Doc. No. 95-20, 999 U.N.T.S. 171 ........................ 18

New Zealand Bill of Rights Act 1990, § 19

(New Zealand) ...................................................... 31

Racial Discrimination Act 1975, § 8(1)

(Australia) ............................................................ 31

U.S. Const., Article VI, ¶ 2 .......................................... 8

International Law Materials

Fourth Periodic Report of the United States of

America to the United Nations Committee

on Human Rights Concerning the

International Covenant on Civil and

Political Rights, U.N. Doc. CCPR/C/USA/4

(Dec. 30, 2011), https://20092017.state.gov/j/drl/rls/179781.htm ............... 19, 21

L.R. et al. v. Slovakia, Communication No.

31/2003, U.N. Doc. CERD/C/66/D/31/2003

(2005),

http://hrlibrary.umn.edu/country/decisions/

31-2003.html ........................................................ 12

Periodic Report of the United States of America

to the United Nations Committee on the

Elimination of Racial Discrimination

Concerning the International Convention

on the Elimination of All Forms of Racial

Discrimination (June 12, 2013),

https://20092017.state.gov/documents/organization/210

817.pdf .................................................................. 17

U.N. Comm. on the Elimination of Racial

Discrimination: Concluding observations on

the combined seventh to ninth periodic

reports of the United States of America,

U.N. Doc. CERD/C/USA/CO/7-9 (Aug. 29,

2014)

https://tbinternet.ohchr.org/Treaties/CERD

/Shared%20Documents/USA/CERD_C_US

A_CO_7-9_18102_E.pdf ....................................... 17

U.N. Comm. on the Elimination of Racial

Discrimination, Concluding observations on

the combined twenty-first to twenty-third

periodic reports of Uruguay, U.N. Doc. No.

CERD/C/URY/CO/21-23 (Jan. 12, 2017),

https://www.refworld.org/docid/597b0e2f4.h

tml......................................................................... 12

U.N. Comm. on the Elimination of Racial

Discrimination, Concluding observations on

the combined twenty-second and twentythird periodic reports of Peru, U.N. Doc.

No. CERD/C/PER/CO/22-23, (May 23,

2018), https://documents-ddsny.un.org/doc/UNDOC/GEN/G18/138/59/PD

F/G1813859.pdf .................................................... 14

vii

U.N. Comm. on the Elimination of Racial

Discrimination, Consideration of reports

submitted by States parties under article 9

of the Convention: International Convention

on the Elimination of All Forms of Racial

Discrimination: concluding observations of

the Committee on the Elimination of Racial

Discrimination: United States of America,

U.N. Doc. CERD/C/USA/CO/6 (May 8,

2008),

http://www.unhcr.org/refworld/docid/4885cf

a70.html ............................................................... 15

U.N. Comm. on the Elimination of Racial

Discrimination, General Recommendation

No. 32, The meaning and scope of special

measures in the International Convention

on the Elimination of All Forms [of] Racial

Discrimination, U.N. Doc. No.

CERD/C/GC/32 (Sept. 24, 2009),

http://www.unhcr.org/refworld/docid/4adc3

0382.html ............................................................. 11

U.N. Comm. on the Elimination of Racial

Discrimination, Report of the Committee on

the Elimination of Racial Discrimination,

50th Sess., Supp. No. 18, U.N. Doc. A/50/18

(Sept. 22, 1995),

http://www.unhcr.org/refworld/docid/45377

9970.html ............................................................. 12

viii

U.N. Comm. on the Elimination of Racial

Discrimination, Report of the Committee on

the Elimination of Racial Discrimination,

51st Sess., Supp. No. 18, U.N. Doc. A/51/18

(Sept. 30, 1996),

http://www.unhcr.org/refworld/docid/3f52ef

ba4.html ............................................................... 13

U.N. Comm. on the Elimination of Racial

Discrimination, Report of the Committee on

the Elimination of Racial Discrimination,

52nd Sess., Supp. No. 18, U.N. Doc. A/52/18

(Sept. 26, 1997),

http://www.unhcr.org/refworld/docid/45c30c

767.html ............................................................... 12

U.N. Comm. on the Elimination of Racial

Discrimination, Report of the Committee on

the Elimination of Racial Discrimination,

71st Sess., U.N. Doc A/62/18 (Oct. 1, 2007),

http://www.unhcr.org/refworld/docid/47342

4062.html ............................................................. 13

U.N. Comm. on the Elimination of Racial

Discrimination, Reports submitted by

States parties under article 9 of the

Convention: International Convention on

the Elimination of all Forms of Racial

Discrimination: 6th periodic reports of

States parties due in 2005: United States of

America, U.N. Doc. CERD/C/USA/6 (Oct.

24, 2007),

http://www.unhcr.org/refworld/docid/4785e

8be2.html.............................................................. 14

U.N. Human Rights Committee, Consideration

of reports submitted by States parties under

article 40 of the Covenant: International

Covenant on Civil and Political Rights:

concluding observations of the Human

Rights Committee: United States of America,

U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (Dec.

18, 2006),

https://www.refworld.org/docid/45c30bec9.ht

ml .................................................................... 18, 19

U.N. Human Rights Council, Report of the

Working Group of Experts on People of

African Descent on its missions to the

United States of America, U.N. Doc

A/HRC/33/61 (Aug. 18, 2016),

https://documents-ddsny.un.org/doc/UNDOC/GEN/G16/183/30/PD

F/G1618330.pdf .................................................... 21

U.N. Human Rights Council, Report of the

Working Group of experts on people of

African Descent: Visit to the United States

of America (25 to 29 January 2010),

Summary, U.N. Doc A/HRC/15/18 (Aug. 6,

2010), https://undocs.org/en/A/HRC/15/18 .......... 20

U.N. Office of the High Commissioner for

Human Rights, Fact Sheet No. 30, The

United Nations Human Rights Treaty

System: An introduction to the core human

rights treaties and the treaty bodies, June

2005, No. 30,

http://www.unhcr.org/refworld/docid/

479477490.html ................................................... 10

U.N. Office of the High Commissioner for

Human Rights, Racism, racial

discrimination, xenophobia and related

intolerance, CHR Res. 2002/68, U.N. Doc.

No. E/CN.4/2002/200 (Apr. 25, 2002),

https://ap.ohchr.org/documents/alldocs.aspx

?doc_id=4940 ........................................................ 20

U.N.T.C., International Convention on the

Elimination of All Forms of Racial

Discrimination, Status as of 26-07-2022,

Chapter IV Human Rights, No. 2,

https://treaties.un.org/Pages/ViewDetails.a

spx?src=TREATY&mtdsg_no=IV2&chapter=4&clang=_en ..................................... 31

U.N.T.C., International Covenant on Civil and

Political Rights, Status as of 26-07-2022,

Chapter IV Human Rights, No. 4,

https://treaties.un.org/Pages/ViewDetails.a

spx?src=TREATY&mtdsg_no=IV4&chapter=4&clang=_en ..................................... 31

Legislative Materials

138 Cong. Rec. S4781-01 (daily ed. Apr. 2,

1992) ....................................................................... 8

140 Cong. Rec. S7634-02 (daily ed. June 24,

1994) ....................................................................... 8

Other Authorities

American Bar Association Profile of the Legal

Profession, Demographics,

https://www.abalegalprofile.com/demograp

hics/ ....................................................................... 24

Ana Hernández Kent & Lowell Ricketts,

Wealth Gaps between White, Black and

Hispanic Families in 2019, Federal

Reserve Bank of St. Louis (Jan. 5, 2021),

https://www.stlouisfed.org/on-theeconomy/2021/january/wealth-gaps-whiteblack-hispanic-families-2019 ............................... 22

Association of American Medical Colleges,

Diversity in Medicine: Facts and Figures

2019, Figure 18. Percentage of all active

physicians by race/ethnicity, 2018,

https://www.aamc.org/datareports/workforce/interactive-data/figure18-percentage-all-active-physiciansrace/ethnicity-2018 .............................................. 23

Bureau of Lab. Stat.,1095, Labor force

characteristics by race and ethnicity, 2020

(2021) .................................................................... 22

Bureau of Lab. Stat., The Employment

Situation-June 2022 (July 8, 2022),

https://www.bls.gov/news.release/pdf/empsi

t.pdf....................................................................... 22

Connie de la Vega, Civil Rights During the

1990s: New Treaty Law Could Help

Immensely, 65 U. Cin. L. Rev. 423 (1997) ............. 9

xii

Darren Staloff, Hamilton, Adams, Jefferson:

The Politics of Enlightenment and the

American Founding (2005) .................................... 5

Harry A. Blackmun, The Supreme Court and

the Law of Nations, 104 Yale L.J. 39 (1994) ......... 6

John Adams, A Defence of the Constitutions of

Government of the United States of America

(1787),

https://openlibrary.org/books/OL7010684M/

A_defence_of_the_constitutions_of_govern

ment_of_the_United_States_of_America .............. 5

National Center for Education Statistics,

Characteristics of Postsecondary Faculty

(May 2022),

https://nces.ed.gov/programs/coe/indicator/c

sc ........................................................................... 23

National Center for Education Statistics,

Public High School Graduation Rates (May

2021),

https://nces.ed.gov/programs/coe/indicator/c

oi/high-school-graduation-rates ........................... 23

Ruth Bader Ginsburg & Deborah Jones

Merritt, Lecture: Fifty-First Cardozo

Memorial Lecture—Affirmative Action: An

International Human Rights Dialogue, 21

Cardozo L. Rev. 253 (1999) .................................... 7

Sarah H. Cleveland, Our International

Constitution, 31 Yale J. Int’l L. 1 (2006) ............... 6

xiii

STF declared the constitutionality of the quota

system at the University of Brasília,

Supremo Tribunal Federal Portal

Internacional (Apr. 26, 2012),

http://www2.stf.jus.br/portalStfInternacion

al/cms/destaquesClipping.php?sigla=portal

StfDestaque_en_us&idConteudo=207138........... 30

U.S. Census Bureau, Educational Attainment

in the United States: 2020,

https://www.census.gov/

data/tables/2020/demo/educationalattainment/cps-detailed-tables.html ................... 23

U.S. Census Bureau, Income and Poverty in

the United States: 2020,

https://www.census.gov/content/

dam/Census/library/publications/2021/dem

o/p60-273.pdf ........................................................ 22

The University of North Carolina at Chapel

Hill, Mission and Values

(Feb. 2014)

https://www.unc.edu/about/mission/ ................... 24

INTERESTS OF AMICI CURIAE

Human Rights Advocates and Human Rights

First hereby request that this Court consider the

present brief pursuant to Supreme Court Rule 37.2(a)

in support of respondents, President and Fellows of

Harvard College (“Harvard”) and the University of

North Carolina (“UNC”). 1

Human Rights Advocates (HRA) is a

California non-profit corporation founded in 1978

with national and international membership. It

endeavors to advance the cause of human rights to

ensure that the most basic rights are afforded to

everyone. HRA has Special Consultative Status in the

United Nations and has participated in meetings of its

human rights bodies for more than thirty years. HRA

has participated as amicus curiae in cases involving

individual and group rights where international

standards offer assistance in interpreting both state

and federal laws. Cases it has participated in include:

Graham v. Florida, 560 U.S. 48 (2010); Roper v.

Simmons, 543 U.S. 551 (2005); Grutter v. Bollinger,

539 U.S. 306 (2003); and Cal. Fed. Savings & Loan

Ass’n v. Guerra, 479 U.S. 272 (1987).

Letters from all counsel consenting to the filing of this

brief have been filed with the Clerk of the Court. Counsel

for a party did not author this brief in whole or in part.

No other person or entity, other than amici curiae, their

members, or their counsel made a monetary contribution

to the preparation and submission of this brief. In

addition to counsel listed on the cover page partner

Raymond C. Marshall and associate Matthew T. Lin from

Sheppard Mullin Richter & Hampton LLP also

contributed to this brief.

Human Rights First (HRF) is a nongovernmental organization established in 1978 that

works to ensure U.S. leadership on human rights

globally and compliance domestically with this

country’s human rights commitments.

HRF

coordinates and works with hundreds of other human

rights and anti-corruption-focused NGOs from all over

the world, documenting human rights violations and

corruption. HRF has submitted expert testimony to

Congress regarding targeted sanctions against

international human rights abusers; the threat of

domestic violent extremism; and international and

domestic obligations to protect refugee and asylum

seekers. HRF has also made submissions to the U.N.’s

Office of the High Commissioner for Human Rights on

issues related to migration, refugees and asylum

protection. HRF has previously provided assistance

as amicus curiae to the Supreme Court in

interpretation of American law in relation to the

nation’s obligations under binding international

treaties.

Amici urge the Court to consider international

law, including the United States’ treaty obligations,

when applying the standards of the United States

Constitution. These standards are part of United

States law pursuant to the Supremacy Clause, and

they provide for the use of “special measures” (the

international law term for affirmative action) when

needed to attain equality with respect to rights. Also

addressed are the law and practice of other countries,

which likewise affirm the consideration of race in

higher education admissions decisions.

The

international and treaty standards support

respondents’ argument that their criteria are

narrowly tailored to furthering a compelling state

interest justifying the consideration of race as part of

their holistic admissions program to satisfy strict

scrutiny under the Constitution’s Equal Protection

Clause.

SUMMARY OF ARGUMENT

International law and opinion have informed

the law of the United States since the adoption of the

Declaration of Independence. The Founders were

greatly influenced by international legal and social

thought, and throughout the history of the United

States, our Nation’s courts have referred to

international standards when considering the

constitutionality of certain practices.

In this case, consideration of race as an aspect

of holistic admissions decisions to universities is

consistent with the United States’ treaty obligations

as well as international practice, which makes it all

the more compelling. Indeed, the review bodies for

two treaties that the United States is party to have

urged the United States to undertake special and

remedial

measures

eradicate

facto

discrimination in schools. Other independent

international law experts have counseled the United

States to do the same. The European Court of Justice

and the national courts of other countries have also

upheld affirmative action measures in relation to

addressing racial disparities in higher education. The

international treaties and practice support Harvard

and UNC’s approach to admissions and they should be

considered when assessing the validity of that

approach under the Fourteenth Amendment.

ARGUMENT

INTERNATIONAL AND COMPARATIVE

FOREIGN LAW ARE RELEVANT TO THE

SUPREME COURT’S CONSIDERATION OF

THE CONSTITUTIONALITY OF HARVARD

AND UNC’S ADMISSIONS PROGRAMS

While the constitutionality of Harvard and

UNC’s undergraduate admissions programs is largely

bound up in domestic law and Fourteenth

Amendment

jurisprudence,

examining

the

permissibility of consideration of race as part of

holistic admissions policies in the international

context would continue the Court’s “longstanding

practice” of looking at international and foreign law to

affirm and inform constitutional interpretation.

Graham v. Florida, 560 U.S. 48, 80 (2010).

The Declaration of Independence itself speaks

to the significance of other nations:

When in the Course of human events, it

becomes necessary for one people to

dissolve the political bands which have

connected them with another, and to

assume among the powers of the earth,

the separate and equal station to which

the Laws of Nature and of Nature’s God

entitle them, a decent respect to the

opinions of mankind requires that they

should declare the causes which impel

them to the separation.

The Declaration of Independence, para. 1 (U.S. 1776)

(emphasis added).

Thomas Jefferson, drafter of the Declaration of

Independence, had a keen appreciation for

international opinion and law. He had a broad

understanding

eighteenth-century

political

thought, and was greatly influenced by European

Enlightenment philosophers and their understanding

of ancient Greek democracy and the Roman Republic.

See Darren Staloff, Hamilton, Adams, Jefferson: The

Politics of Enlightenment and the American Founding

250–51 (2005). John Adams too understood the need

to select the best the world had to offer in order to

create a better government, and he believed that

international opinion should inform the new nation’s

laws and institutions. See John Adams, A Defence of

the Constitutions of Government of the United States

of America, Preface (1787), https://openlibrary.org/

books/OL7010684M/A_defence_of_the_constitutions_

of_government_of_the_United_States_of_America.

In urging courts to afford the requisite “decent

respect to the opinions of mankind” Justice Blackmun

explained that:

[T]he early architects of our Nation

understood that the customs of nations—

the global opinions of mankind—would

be binding upon the newly forged union.

John Jay, the first Chief Justice of the

United States, observed . . . that the

United States “had, by taking a place

among the nations of the earth, become

amenable to the laws of nations.”

Harry A. Blackmun, The Supreme Court and the Law

of Nations, 104 Yale L.J. 39, 39 (1994) (footnotes

omitted). This Court has recognized that history and

noted that:

For two centuries we have affirmed that

the domestic law of the United States

recognizes the law of nations. It would

take some explaining to say now that

federal courts must avert their gaze

entirely from any international norm

intended to protect individuals.

Sosa v. Alvarez-Machain, 542 U.S. 692, 729–30 (2004)

(citations omitted).

In more recent decisions, the Court has referred

to international standards and has invoked U.S.

treaty obligations, particularly when human rights

issues arise. Roper v. Simmons, 543 U.S. 551, 576-77

(2005) (citing the United Nations Convention on the

Rights of the Child as well as other nations’ practices

in abolishing juvenile death penalty); see also

Lawrence v. Texas, 539 U.S. 558, 573 (2003)

(referencing a decision from the European Court of

Human Rights in finding Texas’s sodomy law

unconstitutional); Sarah H. Cleveland, Our

International Constitution, 31 Yale J. Int’l L. 1, 88

(2006) (describing this Court’s cases as demonstrating

“a longstanding tradition of relying on international

law to inform constitutional meaning”). Thus, the

Court recognizes the relevance of international law

even when it is not directly binding. The relevance is

even stronger in situations where the United States is

party to a pertinent treaty.

Members of the Court have invoked

international legal obligations in discussions of raceconscious policies in higher education, in particular.

Grutter v. Bollinger, 539 U.S. 306, 344 (2003)

(Ginsburg, J., concurring).

In Grutter, the

concurrence explained that the Court’s decision to

uphold the University of Michigan Law School’s raceconscious admissions program comported with the

United States’ obligations under The Convention on

the Elimination of All Forms of Racial Discrimination

(CERD) to enact “special and concrete measures” to

guarantee equal protection and enjoyment of human

rights for all races. Id. (citation omitted); see also

Ruth Bader Ginsburg & Deborah Jones Merritt,

Lecture: Fifty-First Cardozo Memorial Lecture—

Affirmative Action: An International Human Rights

Dialogue, 21 Cardozo L. Rev. 253, 282 (1999)

(“[C]omparative analysis emphatically is relevant to

the task of interpreting constitutions and enforcing

human rights. We are the losers if we neglect what

others can tell us about endeavors to eradicate bias

against women, minorities, and other disadvantaged

groups.”). Particularly with respect to the CERD and

the International Covenant on Civil and Political

Rights (ICCPR), treaties which the United States has

ratified, the United States has assumed international

legal obligations that should inform the Court's

analysis here.

II.

CONSIDERATIONS OF RACE IN ADMISSIONS

DECISIONS ARE CONSISTENT WITH THE

UNITED STATES’ INTERNATIONAL HUMAN

RIGHTS COMMITMENTS

Human Rights Treaties Ratified by the

United States Require the Adoption of

Race-Conscious Measures

The United States has ratified two

international human rights treaties that support, and

indeed require, the race-conscious measures that are

at issue in this case: the CERD and the ICCPR. Under

the Supremacy Clause of the Constitution, these

treaties are the supreme law of the land, U.S. Const.,

art. VI, ¶ 2, and state and local governments share

responsibility with the federal government for

upholding the United States’ human rights treaty

commitments. 2 The ratification of these treaties

creates binding international legal obligations for the

United States to uphold and implement the principles

In ratifying CERD and the ICCPR, the United States

attached an understanding setting forth a division of

responsibility between federal, state and local

government for domestic implementation. 140 Cong. Rec.

S7634-02 (daily ed. June 24, 1994) (U.S. reservations,

declarations, and understandings, CERD); 138 Cong. Rec.

S4781-01 (daily ed. Apr. 2, 1992) (U.S. reservations,

declarations, and understandings, ICCPR). The record

notes that the United States would implement the

Conventions “to the extent that it exercises jurisdiction

over the matters covered therein, and otherwise by the

state and local governments. To the extent that state and

local governments exercise jurisdiction over such

matters, the Federal Government shall, as necessary,

take appropriate measures to ensure the fulfillment of

this Convention.” 140 Cong. Rec. S7634-02, at § II.

of the CERD and the ICCPR, and it makes the

provisions of these treaties the supreme law of the

land. 3

Considerations of Race Are

Consistent with the International

Covenant on the Elimination of All

Forms of Racial Discrimination

CERD was ratified by the U.S. in 1994, and

obligates parties to the treaty “to adopt all necessary

measures

for

speedily

eliminating

racial

discrimination in all its forms and manifestations”

and to “undertake to prevent, prohibit and eradicate

all [racially discriminatory] practices.” CERD,

Preamble & art. 3, adopted, Dec. 21, 1965, S. Treaty

Doc. No. 95-18, 660 U.N.T.S. 195.

CERD requires state parties to take affirmative

steps to accomplish these goals. Article 1(4) states

that:

Special measures taken for the sole

purpose

securing

adequate

advancement of certain racial or ethnic

In considering the treaties for this purpose, this Court

need not address the issue of whether the treaty

provisions are self-executing or the validity of the “nonself-executing” declarations that accompany some of the

treaties. For background and legislative history of the

declarations, see Connie de la Vega, Civil Rights During

the 1990s: New Treaty Law Could Help Immensely, 65 U.

Cin. L. Rev. 423, 456–62 (1997). Courts have applied

treaty provisions in defensive postures without

considering whether they are self-executing. See United

States v. Rauscher, 119 U.S. 407, 430 (1886); United

States v. Alvarez-Machain, 504 U.S. 655, 669–70 (1992).

groups or individuals requiring such

protection as may be necessary in order

to ensure such groups or individuals

equal enjoyment or exercise of human

rights and fundamental freedoms shall

not be deemed racial discrimination.

Id. art 1(4). Article 2(2) reiterates this requirement,

providing that States shall take “special and concrete

measures” to help guarantee full freedom and

protection under the law for groups and individuals of

all races. Id. art. 2(2). These special measures are

limited in that they cannot lead to “unequal or

separate rights for different racial groups,” and are to

end after the intended objectives have been achieved.

Id. art. 2(2); art. 1(4).

The CERD treaty body, the CERD Committee, 4

has explained that special measures should include

In ratifying the CERD and ICCPR, the U.S. accepted the

obligation to submit to periodic review by the

independent experts charged with monitoring treaty

compliance (“the treaty bodies”). For CERD, the treaty

body is the Committee on the Elimination of Racial

Discrimination (CERD Committee). For the ICCPR, the

treaty body is the Human Rights Committee. The review

process entails the submission of a report by the state

concerning the steps it has taken domestically to

implement the treaty’s provisions. The treaty body

reviews this report, and then issues a set of

recommendations calling attention to areas of concern

with regard to that state’s compliance. U.N. Office of the

High Commissioner for Human Rights, Fact Sheet No. 30,

The United Nations Human Rights Treaty System: An

introduction to the core human rights treaties and the

treaty bodies, June 2005, No. 30, at 15, 17-23,

http://www.unhcr.org/refworld/docid/

479477490.html. The treaty bodies also issue comments

laws, policies, or practices that can affect areas such

as housing, education, employment, and general

participation in public life. U.N. Comm. on the

Elimination of Racial Discrimination (CERD Comm.),

General Recommendation No. 32, The meaning and

scope of special measures in the International

Convention on the Elimination of All Forms [of] Racial

Discrimination (Gen. Recommendation No. 32), U.N.

Doc. No. CERD/C/GC/32 ¶ 13 (Sept. 24, 2009),

http://www.unhcr.org/refworld/docid/4adc30382.html.

These laws or policies should be implemented by

parties to address the situation of disfavored groups,

and should work towards both de jure and de facto

equality for all races. Id. ¶ 22. The obligation for

parties to “secure human rights and fundamental

freedoms on a nondiscriminatory basis” requires that

parties address not just intentional discrimination,

but also discriminatory effects. Id. ¶ 14. Such

affirmative or positive actions should be “appropriate

to the situation to be remedied, be legitimate,

necessary in a democratic society, respect the

principles of fairness and proportionality, and be

temporary.” Id. ¶ 16. The emphasis of the programs

adopted as special measures should be to “correct[]

present disparities and . . . prevent[] further

imbalances from arising.” Id. ¶ 22.

The CERD Committee has consistently held

that de facto discrimination violates the Convention.

In L.R. v. Slovakia, the Committee held the State

party responsible for actions that have discriminatory

called General Comments or General Recommendations

setting forth their definitive interpretation of the various

treaty provisions. Id. at 29. By their nature, General

Comments apply to all states parties to a given treaty.

effects, regardless of whether they were committed

with discriminatory intent. L.R. et al. v. Slovakia,

Communication

No.

31/2003,

U.N.

Doc.

CERD/C/66/D/31/2003

(2005),

http://hrlibrary.umn.edu/country/decisions/312003.html. Specifically addressing the treatment of

Roma people, the CERD Committee found that

Slovakia had failed its treaty obligation to “nullify any

laws or regulations which have the effect of creating

or perpetrating racial discrimination.” Id. at § 3.2.

The CERD Committee reiterated that discrimination,

as defined in Article 1(1) of the CERD, extends beyond

explicitly discriminatory measures to reach those

which are also discriminatory in fact and effect. Id. at

§ 10.4. Article 5 states that the right to equality in

education is especially important. CERD, art. 5(e)(v).

When reviewing countries’ compliance with the

convention, the CERD Committee has often raised the

importance of special measures, particularly in the

field of education. See, e.g., CERD Comm., Report of

the Committee on the Elimination of Racial

Discrimination, 50th Sess., Supp. No. 18, ¶ 394, U.N.

Doc. A/50/18 (Sept. 22, 1995), http://www.unhcr.org/

refworld/docid/453779970.html (“The Committee

strongly recommends that [Mexico] make an

increased effort in promoting affirmative measures in

the field of education and training.”); CERD Comm.,

Report of the Committee on the Elimination of Racial

Discrimination, 52nd Sess., Supp. No. 18, ¶ 94, U.N.

Doc. A/52/18 (Sept. 26, 1997), http://www.unhcr.org/

refworld/docid/45c30c767.html (urging Guatemala to

increase efforts “to promote affirmative measures in

the fields of education and training”); CERD Comm.,

Concluding observations on the combined twenty-first

to twenty-third periodic reports of Uruguay, ¶ 21, U.N.

Doc. No. CERD/C/URY/CO/21-23 (Jan. 12, 2017),

https://www.refworld.org/docid/597b0e2f4.html

(recommending that Uruguay “adopt special

measures for persons of African descent, especially

adolescents, to remedy disparities in educational

attainment, bring down school dropout rates and

facilitate access to tertiary education”). Requests for

states to initiate or enhance special measures to

promote greater equality in education are common in

the CERD Committee’s annual reports.

Importantly, the CERD Committee has also

made numerous references to concerns about access to

higher education in particular, underscoring the

recognition that inequalities at the university level

are within the purview of the treaty, and that

addressing those inequalities is part of the parties’

legal obligations. See, e.g., CERD Comm., Report of

the Committee on the Elimination of Racial

Discrimination, 51st Sess., Supp. No. 18, ¶ 503, U.N.

Doc.

A/51/18

(Sept.

30,

1996),

http://www.unhcr.org/refworld/docid/3f52efba4.html

(recommending that Namibia adopt “[a]ffirmative

measures . . . to overcome vestiges of the past that still

hamper the possibilities for black people, including

vulnerable groups among them, to have access to

secondary and higher education . . . .”); CERD Comm.,

Report of the Committee on the Elimination of Racial

Discrimination, 71st Sess., ¶ 280, U.N. Doc A/62/18

(Oct. 1, 2007), http://www.unhcr.org/refworld/docid/

473424062.html (urging the Former Yugoslav

Republic of Macedonia to “intensify its efforts to

reduce the high dropout rate in the secondary and

higher levels of education among ethnic Albanian and

Turkish children”); id. ¶ 220 (“[Israel] should ensure

that access to higher education is ensured for all

without discrimination, whether direct or indirect,

based on race, colour, descent, or national or ethnic

origin.”); CERD Comm., Concluding observations on

the combined twenty-second and twenty-third periodic

reports of Peru, ¶ 29(d), U.N. Doc. No.

CERD/C/PER/CO/22-23

(May

23,

2018),

https://documents-dds-ny.un.org/doc/UNDOC

/GEN/G18/138/59/PDF/G1813859.pdf (urging Peru to

“redouble its efforts to ensure the availability,

accessibility and quality of education for Montubio,

Afro-Ecuadorian and indigenous peoples and

migrants, especially at the higher education level”).

The United States’ policies on education have

been the subject of concern for the CERD Committee

as well. In its report to the Committee in 2007, the

U.S. cited “race-conscious educational admission

policies and scholarships” as evidence of its

compliance with article 2(2) and specifically

mentioned the Grutter decision as an example of that

compliance. CERD Comm., Reports submitted by

States parties under article 9 of the Convention:

International Convention on the Elimination of all

Forms of Racial Discrimination: 6th periodic reports

of States parties due in 2005: United States of America

¶¶ 128, 131, U.N. Doc. CERD/C/USA/6 (Oct. 24, 2007),

http://www.unhcr.org/refworld/docid/4785e8be2.html.

Nevertheless, in the Concluding Observations

commenting on its review of the United States’ report,

the Committee responded that the United States had

not done enough to enact special measures to

eradicate de facto discrimination in schools,

recommending that the United States:

undertake further studies to identify the

underlying causes of de facto segregation

and racial inequalities in education, with

a view to elaborating effective strategies

aimed at promoting school desegregation

and

providing

equal

educational

opportunity in integrated settings for all

students. In this regard, the Committee

recommends that the State party take all

appropriate measures . . . [to allow]

school districts to voluntarily promote

school integration through the use of

carefully tailored special measures

adopted in accordance to article 2,

paragraph 2, of the Convention.

CERD Comm., Consideration of reports submitted by

States parties under article 9 of the Convention:

International Convention on the Elimination of All

Forms of Racial Discrimination: concluding

observations of the Committee on the Elimination of

Racial Discrimination: United States of America ¶ 17,

U.N. Doc. CERD/C/USA/CO/6 (May 8, 2008),

http://www.unhcr.org/refworld/docid/4885cfa70.html.

Although the Concluding Observations referred

specifically to Supreme Court decisions that limit the

consideration of individual students’ race in K-12

school assignments, it is clear that the CERD

Committee is cognizant and concerned about racial

equality in American schools generally, and that it

frames the issue in terms that echo “strict scrutiny”

standards under the Constitution.

In its report to the CERD Committee in 2013,

the United States specifically referred to Fisher v.

Univ. of Tex. at Austin, 579 U.S. 365 (2016)

(“Fisher II”):

The United States legal system provides

for

special

measures

when

circumstances so warrant. See the

discussion under article 2 below and the

discussion in paragraphs 197 to 206 of

the common core document. Recently,

DOJ

actively

defended

the

undergraduate admission program of the

University of Texas, which was

challenged by two unsuccessful White

candidates

for

undergraduate

admission. The Texas program adopts a

holistic approach – examining race as

one component among many – when

selecting among applicants who are not

otherwise

eligible

for

automatic

admission by virtue of being in the top

ten percent of their high school classes.

The U.S. Court of Appeals for the Fifth

Circuit upheld the University’s limited

use of race as justified by a compelling

interest in diversity and as narrowly

tailored to achieve a critical mass of

minority students. The Supreme Court

heard arguments in the case, Fisher v.

Texas, in October 2012, and is expected

to decide the case by June 2013. In its

amicus curiae brief, the Solicitor General

argued, on a brief signed by several

federal agencies, that, like the

University, the United States has a

compelling interest in the educational

benefits of diversity, and that the

University’s use of race in freshman

class admissions to achieve the

educational benefits of diversity is

constitutional.

Periodic Report of the United States of America to the

United Nations Committee on the Elimination of

Racial Discrimination Concerning the International

Convention on the Elimination of All Forms of Racial

Discrimination ¶ 16 (June 12, 2013), https://20092017.state.gov/documents/organization/210817.pdf.

The 2014 review of the United States by the CERD

Committee again expressed concern about state

measures adopted against the use of affirmative

action in school admissions.

CERD Comm.,

Concluding observations on the combined seventh to

ninth periodic reports of the United States of America,

¶ 7, U.N. Doc. CERD/C/USA/CO/7-9 (Aug. 29, 2014)

https://tbinternet.ohchr.org/Treaties/CERD/Shared%

20Documents/USA/CERD_C_USA_CO_79_18102_E.pdf. The CERD Committee reiterated its

previous recommendations that the United States

adopt and strengthen the use of special measures. Id.

Compounded

with

the

numerous

recommendations for special measures in higher

education throughout CERD Committee’s evaluations

of other nations, it is clear that parties to CERD,

including the United States, are obligated under the

treaty to take all necessary measures, including

positive action, to end de facto segregation—and thus

to promote equal opportunity—in all levels of

education, as part of the parties’ legal obligations.

Thus, holistic considerations of race in higher

education admissions decisions are consistent with

the United States’ international legal obligations

under CERD, and indeed can be defended on the

grounds that they implement the United States’

treaty obligations. Such considerations promote a

compelling state interest, and consistent with strict

scrutiny analysis, they are closely tailored to that

compelling interest.

Considerations of Race Are

Permissible and Encouraged under

The International Covenant on Civil

and Political Rights

The United States ratified the ICCPR in 1992.

ICCPR, adopted, Dec. 16, 1966, S. Treaty Doc. No. 9520, 999 U.N.T.S. 171. The treaty obligates member

states to protect the human dignity of individuals by

upholding “equal and inalienable rights” within their

territories. Id., Preamble. The ICCPR requires states

parties to protect individual rights “without

distinction of any kind, such as race, colour, sex,

language, religion,” id. art. 2(1), and provides that

“the law shall prohibit any discrimination and

guarantee to all persons equal and effective protection

against discrimination on any ground.” id. art. 26.

In its 2006 review of the United States’

compliance with the ICCPR, the U.N. Human Rights

Committee (HRC) expressed concern over “de facto

racial segregation in public schools,” and reminded

the United States of its obligations under articles 2

and 26 to guarantee effective protection against

practices with discriminatory effects.

HRC,

Consideration of reports submitted by States parties

under article 40 of the Covenant: International

Covenant on Civil and Political Rights: concluding

observations of the Human Rights Committee: United

States

America

23,

U.N.

Doc.

CCPR/C/USA/CO/3/Rev.1

(Dec.

18,

2006),

https://www.refworld.org/docid/45c30bec9.html. The

Committee recommended that the United States

conduct investigation into racial segregation in

schools and “take remedial steps.” Ibid.

In the United States’ report to the HCR in 2011

regarding its compliance with the ICCPR, the State

Department highlighted the Court’s consideration of

education-specific affirmative action plans and

guidance issued by the Departments of Education and

Justice to assist educational institutions in pursuing

policies to achieve diversity and avoid racial isolation,

as evidence of the United States’ compliance with

ICCPR article 2. Fourth Periodic Report of the United

States of America to the United Nations Committee on

Human Rights Concerning the International

Covenant on Civil and Political Rights, ¶ 39, U.N. Doc.

CCPR/C/USA/4 (Dec. 30, 2011), https://20092017.state.gov/j/drl/rls/179781.htm. In doing so, the

government acknowledges, and indeed asserts, that

special measures in higher education serve to uphold

the “equal and inalienable rights” championed in the

ICCPR, and to further the United States’ compliance

with its international obligations under that treaty.

Other Independent Human Rights

Experts Have Recommended

Considerations of Race in Higher

Education to Address Inequality

The United Nations Working Group of Experts

on People of African Descent 5 (the “Working Group”)

has also raised concerns about minority access to

higher education in the United States. In a report to

the U.N. Human Rights Council concerning its visit to

the United States in January 2010, the Working

Group found that “the challenges faced by people of

African descent in this country related mainly to

disproportionately high levels of unemployment,

generally lower income levels than the rest of the

population, access to education (especially to higher

levels of education) and quality of education.” HRC,

Report of the Working Group of experts on people of

African Descent: Visit to the United States of America

(25 to 29 January 2010), Summary, U.N. Doc

A/HRC/15/18 (Aug. 6, 2010), https://undocs.org/

en/A/HRC/15/18. The Working Group suggested that

the United States continue the initiatives already in

place to remedy inequality in the education system,

and also create “positive action policies to achieve

parity of educational conditions among students of

The Working Group is a panel of independent experts

established by the UN Commission on Human Rights in

2002 to study and make recommendations and programs

to combat issues of racial discrimination, xenophobia,

and related intolerance. U.N. Office of the High

Commissioner for Human Rights, Racism, racial

discrimination, xenophobia and related intolerance, CHR

Res. 2002/68, U.N. Doc. No. E/CN.4/2002/200 at 287, 29091 (Apr. 25, 2002), https://ap.ohchr.org/documents/

alldocs.aspx?doc_id=4940.

African descent and those of the majority population.”

Id. ¶ 83.

The Human Rights Council reaffirmed the

value of affirmative action in its August 2016 report,

based on findings from a visit to the United States

from January 19, 2016 to January 29, 2016. The

Working Group recognized the value of affirmative

action policies but also acknowledged the implications

of ongoing historical, racial discrimination through

numerous references to “institutional and structural”

discrimination. U.N. Human Rights Council, Report of

the Working Group of Experts on People of African

Descent on its missions to the United States of

America, U.N. Doc A/HRC/33/61 (Aug. 18, 2016),

https://documents-dds-ny.un.org/doc/UNDOC/GEN/

G16/183/30/PDF/G1618330.pdf. The Working Group

specifically endorsed the Court’s holding in Fisher II,

579 U.S. 365, but reported that “civil rights laws are

not being fully implemented, and even if fully

implemented, they are insufficient to overcome and

transform the institutional and structural racial

discrimination and racism against people of African

descent.” Id. ¶ 11.

Racial Discrimination and Inequality

Still Persist in the United States

The racial discrimination and inequality

contemplated by the CERD and ICCPR remain

evident in numerous areas of American life. For

example, vast disparities continue to exist in the

median household income for households of different

races. In 2020, the median household income was

$45,870 for Black households, $55,321 for Hispanic

households, $74,912 for non-Hispanic White

households, and $94,903 for Asian households. See

U.S. Census Bureau, Income and Poverty in the

United States: 2020, https://www.census.gov/content/

dam/Census/library/publications/2021/demo/p60273.pdf. These disparities also exist in household

wealth, with the median White family owning

$184,000 in family wealth, the median Hispanic

family owning less than $38,000 in family wealth, and

the median Black family owning $23,000 in family

wealth. See Ana Hernández Kent & Lowell Ricketts,

Wealth Gaps between White, Black and Hispanic

Families in 2019, Federal Reserve Bank of St. Louis

(Jan. 5, 2021), https://www.stlouisfed.org/on-theeconomy/2021/january/wealth-gaps-white-blackhispanic-families-2019.

Inequalities also exist in employment rates

among different races: in 2020, while the overall

unemployment rate in the U.S. averaged 8.1%, the

average unemployment rates were higher for

American Indians and Alaska Natives (11.7%), people

categorized as being of Two or More Races (11.6%),

and Blacks or African Americans (11.4%). See Bureau

of Lab. Stat., 1095, Labor force characteristics by race

and ethnicity, 2020 (2021).

The average

unemployment rate for Whites (7.3%) was lower than

the national average in 2020.

See id.

These

inequalities persist even in a relatively strong

economy.

In June 2022, while the overall

unemployment rate was 3.6%, the unemployment rate

was 3% for Asian workers, 3.3% for White workers,

4.3% for Hispanic workers, and 5.8% for Black

workers. See Bureau of Lab. Stat., The Employment

Situation—June

2022

(July

2022),

https://www.bls.gov/news.release/pdf/empsit.pdf.

Large disparities in educational attainment

also persist today. In 2020, 20.9% of Hispanics, 27.9%

of Blacks, 41.3% of non-Hispanic Whites, and 61.1% of

Asians had a bachelor’s degree or higher. See U.S.

Census Bureau, Educational Attainment in the

United

States:

2020,

https://www.census.gov/

data/tables/2020/demo/educational-attainment/cpsdetailed-tables.html. In the 2018–2019 school year,

the national adjusted cohort graduation rate was 86%,

but the rates varied for Asian/Pacific Islander

Students (93%), White Students (89%), Hispanic

students (82%), Black students (80%), and American

Indian/Alaska Native students (74%). See National

Center for Education Statistics, Public High School

Graduation Rates (May 2021), https://nces.ed.gov/

programs/coe/indicator/coi/high-school-graduationrates.

These inequalities are also directly impacted by

American’s access to college education. For example,

there are stark inequalities in the racial backgrounds

in educated professions. In the medical field, 56.2% of

active physicians identify as White, 17.1% identify as

Asian, 5.8% identify as Hispanic, and 5% identify as

Black or African American.

See Association of

American Medical Colleges, Diversity in Medicine:

Facts and Figures 2019, Figure 18. Percentage of all

active

physicians

race/ethnicity,

2018,

https://www.aamc.org/data-reports/workforce/

interactive-data/figure-18-percentage-all-activephysicians-race/ethnicity-2018.

There are also

inequalities in the demographics of college professors:

in 2020, over 74% of full-time faculty were White,

while only 12% were Asian, 7% were black, and 6%

were Hispanic. See National Center for Education

Statistics, Characteristics of Postsecondary Faculty

(May

2022),

https://nces.ed.gov/programs/coe/

indicator/csc. The legal profession remains one of the

professions most lacking in diversity: in 2021, White

lawyers made up 85% of the profession, while 4.8% of

lawyers were Hispanic, 4.7% were Black, and 2.5%

were Asian. American Bar Association Profile of the

Legal

Profession,

Demographics,

https://www.abalegalprofile.com/demographics/.

Harvard University and The University

of North Carolina’s Holistic, RaceConscious Approach to Admissions is

Consistent with International Treaty

Obligations and Recommendations

Both Harvard and UNC prioritize the diversity

of their student bodies when selecting which students

to admit as undergraduates. Harvard has explained

throughout this case that its mission is “to educate …

citizens and citizen leaders for our society,” and that

essential to that mission is “a diverse living

environment, where students live with people who are

studying different topics, who come from different

walks of life and have evolving identities.” No. 201199, Joint Appendix 1762. Likewise, UNC’s mission

statement includes a declaration that it exists “to

serve as the center for research, scholarship, and

creativity and to teach a diverse community of

undergraduate, graduate, and professional students

to become the next generation of leaders.” The

University of North Carolina at Chapel Hill, Mission

and Values (Feb. 2014) https://www.unc.edu/

about/mission/; No. 21-707, Joint Appendix 1371.

Both universities further this goal of creating a

diverse student body by performing a holistic

evaluation of each applicant, and both universities

consider each applicant’s race as one of many factors

in their holistic application. The universities’ raceconscious student admissions programs also survived

strict scrutiny under the Constitution’s Equal

Protection Clause in the lower courts. That these

admissions programs follow the dictates of

international law applicable to the United States can

only bolster their permissibility under the

Constitution.

Along with adhering to constitutional

requirements under the Equal Protection Clause,

Harvard and UNC’s admissions programs further the

United States’ compliance with its international

treaty obligations, including those of CERD articles

1(4) and 2(2) concerning special measures to eliminate

racial discrimination. As explained above, under

CERD, special measures must be “goal-directed

programmes which have the objective of alleviating

and remedying the disparities in the enjoyment of

human rights and fundamental freedoms affecting

particular groups and individuals, protecting them

from discrimination.” Gen. Recommendation No. 32,

supra, ¶ 22. These criteria are consistent with

Fourteenth Amendment jurisprudence.

Both

Harvard and UNC seek to promote equal opportunity

in higher education for students of all races by

ensuring that they admit racially diverse student

bodies, in addition to improving the overall quality of

the education provided to their students by creating a

diverse learning environment.

Moreover, CERD requires that states parties

implement special and concrete measures, “when the

circumstances so warrant,” in order to ensure that all

racial groups are granted full and equal human rights.

CERD, art. 2(2). Thus, CERD does not require a

finding

purposeful

discrimination,

only

discriminatory effects. The District Court for the

Middle District of North Carolina specifically found

that UNC’s admissions policy sought to remedy the

“vestiges of [prior] discrimination, by [UNC] and

society at large” that remain today. Students for Fair

Admissions, Inc. v. Univ. of N. Carolina, 567 F. Supp.

3d 580, 590 (M.D.N.C. 2021). Among these vestiges

are the underrepresentation of certain racial groups

in American universities, which in turn inhibit the

access of these racial groups to the benefits of elite

education at institutions like Harvard and UNC.

Both universities’ consideration of race along with

other holistic factors in their admissions programs

help remedy this discriminatory effect by building a

diverse student body. Thus, the admissions program

complies with CERD’s requirements that special

measures be “appropriate to the situation to be

remedied, be legitimate . . . [and] respect the

principles of fairness and proportionality.” Gen.

Recommendation No. 32, ¶ 16. The treaty standards

thus provide additional support for the University’s

admission program.

Harvard too has demonstrated that its

consideration of race in admissions is necessary to

enhance the diversity of its student body and achieve

the corresponding benefits of diversity for its student

body. The First Circuit specifically found that raceconscious admissions were intended to support at

least four goals articulated in the Khurana Report,

including (1) training future leaders in the public and

private sectors as Harvard's mission statement

requires; (2) equipping Harvard's graduates and

Harvard itself to adapt to an increasingly pluralistic

society; (3) better educating Harvard's students

through diversity; and (4) producing new knowledge

stemming from diverse outlooks. Students for Fair

Admissions, Inc. v. President & Fellows of Harvard

Coll., 980 F.3d 157, 173–74 (1st Cir. 2020). These

measures are not discriminatory: the CERD

Committee has explained that measures that take

into account individuals who are in disadvantaged

situations, like the measures at issue here, are “not an

exception to the principle of non-discrimination but

are integral to its meaning and essential to the

[CERD] project of eliminating racial discrimination

and advancing human dignity and effective equality.”

Gen. Recommendation No. 32, supra, ¶ 20. Harvard

and UNC’s consideration of race in university

admissions comprise a necessary component of

instituting nondiscrimination in the United States, as

required by the CERD.

Harvard’s holistic, race-conscious admissions

policies also further the United States’ compliance

with international law despite the fact that the

university is a private institution. Neither CERD, the

U.N. Human Rights Committee, nor the U.N. Human

Rights Council address distinctions between public

and private universities when discussing special

measures to address racial and ethnic discrimination.

U.S. courts have analyzed Harvard’s compliance with

the Equal Protection Clause and anti-discrimination

laws with the same scrutiny applied to public

universities because it is a recipient of federal public

funding. See Students for Fair Admissions, Inc., 980

F.3d at 184 (“Because Harvard accepts federal funds,

it is subject to Title VI.”). Furthermore, allowing

Harvard to consider race in building a diverse student

body furthers the United States’ compliance with

international law, which requires member states to

take special measures to eliminate all impacts of

racial discrimination.

Finally, although there is no established end

date to the universities’ undergraduate admissions

programs, informal and formal review processes

adopted by both universities, as well as judicial

requirements that race-conscious admissions be

narrowly tailored to address a compelling state

interest, Fisher v. Univ. of Texas at Austin, 570 U.S.

297, 310 (2013) (“Fisher I”), ensure that the policy

adheres to CERD’s mandate that special measures

last no longer than required, Gen. Recommendation

No. 32, supra, ¶ 16.

III.

OTHER JURISDICTIONS AFFIRM THE

PROPRIETY AND BENEFITS OF RACECONSCIOUS APPROACHES TO ADVANCE

EQUALITY AND NON-DISCRIMINATION

In addition to furthering the United States’

compliance with its international legal obligations,

Harvard and UNC’s holistic, race-conscious

admissions programs comport with affirmative action

measures permitted in, and endorsed by, other

jurisdictions that have the same or similar obligations

under international or domestic law. 6

The European Court of Justice, for instance,

has endorsed “positive action” programs to promote

equality between men and women. In two cases, the

European Court has upheld German initiatives that

give priority to women in promotion decisions in

positions where women were underrepresented. See

Case C-158-97, Badeck & Others, 2000 E.C.R. I-1875,

[2001] 2 C.M.L.R. 6, 2000 All ER (EC) 289, 2000 WL

281317 (E.C.J. 2000); Case C-409/95, Marschall v.

Land Nordrhein-Westfalen, 1997 E.C.R. I-6363, 1997

All ER (EC) 865 (E.C.J. 1997) (available on Westlaw).

The programs under review in Badeck and Marschall

were intended to counteract unequal opportunities for

a disadvantaged group, regardless of the presence of

intentional discrimination. The European Court

found that the German policies lawfully pursued this

legitimate social objective and utilized means that

were proportionate in relation to the real needs of the

disadvantaged group. Badeck, 2000 E.C.R. I-1875,

Operative Part.

Along with the European Court of Justice,

national courts in other jurisdictions have upheld

affirmative action measures, specifically in relation to

racial disparities in higher education. In 2012, the

Federal Supreme Court of Brazil, Brazil’s highest

As noted by Justice Breyer, the practices of other

countries bound by the same treaty obligations provide

valuable guidance to the Court in construing and

applying treaties of the United States. See Stephen

Breyer, The Court and the World: American Law and

the New Global Realities 169 (2015).

court of appeals on constitutional matters, declared a

race-conscious policy in student admissions at the

University of Brasília (UNB) to be constitutional.

S.T.F. ADFP 186, April 26, 2012. Just as the

programs at issue here aim to promote diversity in the

university setting, the Brazilian court found that

UNB’s affirmative action program was necessary to

“set a plural and diversified academic environment.”

STF declared the constitutionality of the quota system

at the University of Brasília, Supremo Tribunal

Federal Portal Internacional (Apr. 26, 2012),

http://www2.stf.jus.br/portalStfInternacional/cms/des

taquesClipping.php?sigla=portalStfDestaque_en_us

&idConteudo=207138. Courts in South Africa have

also upheld race-conscious measures in higher

education. In one case, an Indian woman who was

denied admission to a medical school challenged the

school’s affirmative action program that was aimed at

benefiting

historically-disadvantaged

African

students. Motala & Another v. Univ. of Natal, 1995

(3) BCLR 374(D) (Durban Sup. Ct.), 1995 SACLR

LEXIS 256, at *16-*17 (S. Afr. Feb. 24, 1995). The

court rejected the challenge, stating that the

experience of African students in the country required

specific compensation and thus the program was not

discriminatory under the South African constitution.

Id. at *28.

Other countries permit affirmative action

programs as a matter of law. For instance, India’s

national constitution was amended in 2005 to decree

that the nation would allow affirmative action in

higher education: “Nothing in [the constitution’s antidiscrimination provisions] shall prevent the State

from making any special provision, by law, for the

advancement of any socially and educationally

backward classes of citizens or for [disadvantaged

castes and tribes].” India Const. art. 15, cl. 5.

Similarly, the Canadian constitution guarantees

equal protection under the law, and explains that this

guarantee “does not preclude any law, program or

activity that has as its object the amelioration of

conditions of disadvantaged individuals or groups

including those that are disadvantaged because of

race, national or ethnic origin, colour, religion, sex,

age or mental or physical disability.” Canadian

Charter of Rights and Freedoms, Part I of the

Constitution Act, 1982 § 15(2), being Schedule B to the

Canada Act, 1982, c.11 (U.K.). In addition, statutes

in New Zealand and Australia permit affirmative

action measures in those countries. See New Zealand

Bill of Rights Act 1990, § 19, 1990, S.N.Z. No. 109Human Rights Act 1993, 1993 S.N.Z. No. 82 §§ 58,

73(1); Racial Discrimination Act 1975, § 8(1) (Austl.).

These examples evidence the willingness by other

countries that, like the United States, are parties to

the CERD and the ICCPR to endorse race-conscious

programs. 7 The practice of other nations should

inform the Court’s consideration here.

For parties to CERD, see, U.N.T.C., International

Convention on the Elimination of All Forms of Racial

Discrimination, Status as of 26-07-2022, Chapter IV

Human Rights, No. 2, https://treaties.un.org/Pages/

ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&

chapter=4&clang=_en. For parties to the ICCPR, see

U.N.T.C., International Covenant on Civil and Political

Rights, Status as of 26-07-2022, Chapter IV Human

Rights,

No. 4,

https://treaties.un.org/Pages/

ViewDetails.aspx?src=TREATY&mtdsg_no=IV4&chapter=4&clang=_en.

CONCLUSION

Harvard and UNC’s holistic, race-conscious

admissions policies comport with international

human rights standards guaranteeing the full

freedom from racial discrimination for all, and they

further the United States’ compliance with its

international treaty commitments. Furthermore, the

admissions programs comport with the law of other

jurisdictions upholding and endorsing race-conscious

measures in admissions in higher education. This

international context should inform the Court’s

analysis of the constitutionality of Harvard and

UNC’s consideration of race in their admissions

processes.

Respectfully submitted,

Constance de la Vega*

Frank C. Newman Int’l

Human Rights Clinic

University of San

Francisco School of Law

2130 Fulton Street

San Francisco, CA

94117

415-422-2296

delavega@usfca.edu

*Counsel of Record

Neil A.F. Popović

Sheppard, Mullin,

Richter & Hampton LLP

Four Embarcadero

Center, 17th Floor

San Francisco,

California 94111-4109

415-434-9100

Counsel for Amici Curiae

Human Rights Advocates

Human Rights First

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.