Amicus Curiae Brief — Grutter v. Bollinger

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

FEB 14 2003

Nos. 02-241 & 02-516

In the

Supreme Court of the United States

Barbara Grutter, Jennifer Gratz and

Petitioner, Patrick Hamacher,

Petitioners,

v. and .-

Lee Bollinger, et al., Lee Bollinger, et al.,

Respondents. Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICI CURIAE OF

THE NATIONAL COALITION OF BLACKS

FOR REPARATIONS IN AMERICA (N’COBRA) AND

THE NATIONAL CONFERENCE OF

BLACK LAWYERS (NCBL)

IN SUPPORT OF RESPONDENTS

Adjoa A. Aiyetoro Desiree M. Ferguson, Co-Chair

Chief Legal Counsel Imhotep Alkebu-lan, Co-Chair

National Coalition of Blacks National Conference of

For Reparations In America _ Black Lawyers

4603 South Hall 645 Griswold, Suite 3300

Center For Black Studies Detroit, MI 48226

Santa Barbara, CA 93106 (313) 256-9833

(805) 893-7508

Kevin Outterson

Counsel of Record

Associate Professor of Law

West Virginia University College of Law

P.O. Box 6130

Morgantown, WV 26506

(304) 293-8282

BEST AVAILABLE COPY

TABLE OF CONTENTS

Table of Authorities

Interests of Amici Curiae

Summary of Argument

Argument

Conclusion

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) 5, 11-12, 15-16, 19

Berea College v. Kentucky,

211 U.S. 45 (1908) 13

Bolling v. Sharpe, 347 U.S. 497 (1954) 11

Brown v. Board of Education,

347 U.S. 483 (1954) 5,9

Cato v. United States,

70 F.3d 1103 (9" Cir. 1995) 6

The Civil Rights Cases,

109 U.S. 3 (1883) 8, 10-11, 14, 19

Corrigan v. Buckley,

271 US. 323 (1926) 12

Dred Scott v. Sandford, 60 U.S. 393 (1856) 16

Gibson v. Mississippi, 162 U.S. 565 (1896) 11, 14

Heart of Atlanta Motel, Inc. v. U.S.,

379 U.S. 241 (1964) 9-10, 14

Hirabayash v. United States,

320 U.S. 81 (1943) 12

ili

Hodges v. United States, 203 U.S. 1 (1906)

Hunter v. Underwood, 471 U.S. 222 (1985)

Jones v. Mayer Co., 392 U.S. 409 (1968)

Korematsu v. United States, 323 U.S. 214 (1944)

Louisiana v. United States, 380 U.S. 145 (1965)

Loving v. Virginia, 388 U.S. 1 (1967)

Obadele v. United States, 52 Fed. Cl. 432 (2002)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)

The Slaughter-House Cases, 83 U.S. 36 (1872)

Strauder v. West Virginia, 100 U.S. 303 (1878)

United States v. Cruikshank, 92 U.S. 542 (1875)

United States v. Fordice, 505 U.S. 717 (1992)

United States v. Hohri, 482 U.S. 64 (1987)

United States v. Mississippi, 380 U.S. 128 (1965)

United States v. Paradise, 480 U.S. 149 (1987)

Virginia v. Rives, 100 U.S. 313 (1879)

12-13

10-11

Ex Parte State of Virginia, 100 U.S. 339 (1878)

Wygant v. Jackson Board of Education,

476 U.S. 267 (1986)

Constitutional Provisions

U.S. Const. art. I, § 2, cl. 3,

amended by Amend. XIV, Sec. 2

U.S. Const., art. I, § 9, cl. 1

U.S. Const. art. II, § 2

U.S. Const. art. VI

U.S. Const., amends. XIII, XTV and XV

Treaties

Additional Article to the Treaty for the

Suppression of the African Slave Trade,

Feb. 17, 1863 (signed), U.S.-G.B., T.S. 127

Convention on the Prevention and

Punishment of the Crime of Genocide,

Dec. 9, 1948 (adoption by General Assembly),

K.A.V. 2303, 78 U.N.T.S. 277

International Convention on the Elimination

of All Forms of Racial Discrimination,

Dec. 21, 1965 (adopted by General Assembly),

passim

K.A.V. 2307, 5 LL.M 352 (1966),

660 U.N.T.S. 195

Treaty between United States and

Great Britain for the Suppression

of the Slave Trade, Apr. 7, 1862 (signed),

U.S.-G.B., T.S. 126

Treaty of Peace and Amity between

His Britannic Majesty and the United

States of America (The Treaty of Ghent),

Dec. 24, 1814 (signed), U.S.-G.B., T.S. 109

Statutes

8 Stat. 218

13 Stat. 645

13 Stat. 507

14 Stat. 173

18 Stat. 335

18 Stat. (2) 345

The Civil Liberties Act of 1988,

Pub. L. No. 100-383, 102 Stat. 903 (1988)

42 U.S.C. § 1981

3, 20-21

Legislative History

140 Cong. Rec. 14,326 (1994) 3,21

S.B. 4718, 55" Cong. (1898) 6

Executive Orders

Exec. Order No. 13107, 3 C.F.R. 234 (1999) —

Court Rules

Rule 37.6

Miscellaneous Materials

Adjoa A. Aiyetoro, The National Coalition

of Blacks for Reparations in America:

Its Creation and Contribution to the

Reparations Movement, in Should America Pay?:

Slavery and the Raging Debate Over 3

Reparations 209-210 (Ray Winbush, ed. 2003)

Elazar Barkan, The Guilt of Nations: Restitution and “

Negotiating Historical Injustices 3-156 (2000)

Vii

Douglas L. Colbert, Liberating the Thirteenth

Amendment, 30 Harv. C.R.-C.L. L. Rev. 1 (1995)

Commission for Positive Education,

The Forty Acres Documents: What Did the

United States Really Promise

the People Freed From Slavery? (1994)

Kenneth B. Nunn, Rosewood, in

When Sorry Isn’t Enough

(Roy L. Brooks, ed. 1999)

Linda Allen Eustace & Lari A. Obadele,

Eight Women Leaders of the Reparations

Movement USA (2000)

Don E. Fehrenbacher,

The Slaveholding Republic (2001)

John Hope Franklin & Alfred A. Moss, Jr.,

From Slavery To Freedom: A History of

African Americans (7™ ed. 1994)

Leon F. Litwack, Been In the Storm So Long:

The Aftermath of Slavery (1979)

Leon F. Litwack, Trouble In Mind:

Black Southerners In the Age of Jim Crow (1998)

Vili

Jordan J. Paust, Customary

International Law and Human Rights

Treaties Are Law of the United States,

20 Mich. J. Int’] L. 301 (1999)

Jordan J. Paust, Race-Based

Affirmative Action and International Law,

18 Mich. J. Int’] L. 659 (1997)

William Shakespeare, Julius Caesar,

Act 3, Scene 2

William M. Wiecek, The Sources of Antislavery

Constitutionalism in America, 1760-1848 (1977)

C. Vann Woodward, The Strange Career

of Jim Crow (1955) x

INTERESTS OF AMICI CURIAE

IN SUPPORT OF RESPONDENT

Amicus National Coalition of Blacks for Reparations

in America (N’COBRA) was founded in 1987 to work with

individuals and other organizations to obtain reparations for

the crimes against humanity known as chattel slavery and de

Jure and de facto racial discrimination.

Amicus National Conference of Black Lawyers

(NCBL) was founded in 1968, with the mission of serving as

the legal arm of the movement for Black liberation,

protecting human rights, achieving self-determination of

Africa and African communities and working in coalition to

assist in ending oppression of all peoples. :

SUMMARY OF ARGUMENT

Affirmative action in education is supported by

Respondents on two grounds: remedial action for past and

present discrimination and promotion of campus diversity.

This brief focuses exclusively on the first proposition, and

recasts it in the language of reparations: affirmative action

in education is justified as reparations for the crimes of

Slavery and de jure racial discrimination. Such reparations

' This brief is submitted with the consent of the parties, as lodged with

the Clerk per the Docket Sheets. Pursuant to Rule 37.6, counsel

represent that this brief was not authored in whole or in part by counsel

for any party. All expenses of amici have been borne by their own

resources, without support from any party. Counsel have served pro

bono publico.

The Fourteenth Amendment is not a purely ‘color

blind’ enactment, but is a necessary legal tool for equality in

the aftermath of chattel slavery. Use of the Fourteenth

Amendment to strike down reparations for African

Americans is strikingly inapposite to its purpose, language

and intent.

Strict scrutiny is not required in the cases before the

Court today. Suspect racial classification is not required

under a remedial affirmative action analysis, since the

recipients are identified on the basis of a common injury

rather than race. If the injured persons are in fact identified

racially, that identification was made by the oppressors

rather than the oppressed. Consequently, a less stringent

level of review is appropriate here.

The remedial use of affirmative action is entirely

consistent with Equal Protection, as demonstrated in the

obligations of the United States under the Convention on the

Elimination of All Forms of Racial Discrimination.

The Michigan affirmative action educational

programs before the Court today should be upheld as

reparations to African Americans. If remand is necessary,

lower courts should be instructed to uphold the programs to

the extent they satisfy this compelling state interest.

ARGUMENT

THE FOURTEENTH AMENDMENT

SUPPORTS

AFFIRMATIVE ACTION IN EDUCATION AS

REPARATIONS FOR THE CRIMES OF SLAVERY

AND DE JURE RACIAL DISCRIMINATION

I. AFFIRMATIVE ACTION IN ED

UCATION

DESIGNED AS REPARATIONS FOR THE

CRIMES OF SLAVERY AND DE JURE

PROMINTED . BY gg

THE FO

AMENDMENT —

Throughout most of its history, the United S

been an exceedingly hostile place for Africans —y on

descendants. Slavery, genocide and de jure racial

discrimination are now recognized as either crimes against

humanity or contrary to international law under treaties

ratified by the United States. See International Convention

on the Elimination of All Forms of Racial Discrimination

Dec. 21, 1965 (adopted by General Assembly), K.A.V. 2307,

5 LL.M 352 (1966), 660 U.N.T.S. 195, 216-218, art. 1,44,

art. 2, { 2 (requiring remedial affirmative action until the

effects of racial discrimination are overcome) ratification in

140 Cong. Rec. 14,326 (1994); Convention on the

Prevention and Punishment of the Crime of Genocide, Dec.

9, 1948 (adoption by General Assembly), K.A.V. 2303, 78

U.N.T.S. 277, 278-280, art. I (““genocide...is a crime under

international law”); Additional Article to the Treaty for the

Suppression of the African Slave Trade, Feb. 17, 1863

(signed), U.S.-G.B., T.S. 127, 18 Stat. (2) 345: Treaty

2 J

Other minority groups were targets of hostili iscriminati

ty and discrimination

reg €.8., Adarand yr eye Inc. v. Pena, 515 U.S. 200, 244.

S ’ , te Ainidieniinnel ;

Japanese-Americans and Native Americans). e

between United States and Great Britain for the Suppression

of the Slave Trade, Apr. 7, 1862 (signed), U.S.-G.B., TS

126, 13 Stat. 645; Treaty of Peace and Amity between His

Britannic Majesty and the United States of America (The

Treaty of Ghent), Dec. 24, 1814 (signed), U.S.-G.B., TS.

109, 8 Stat. 218, art. 10, (“the Traffic in Slaves is

irreconcilable with the principles of humanity and Justice”).

In the light of such history, affirmative action may

certainly be used as a remedy:

“The Court is in agreement that, whatever the

formulation employed, remedying past or present

racial discrimination by a state actor is a sufficiently

weighty state interest to warrant the remedial use of a

carefully constructed affirmative action program.

Wygant v. Jackson Board of Education, 476 US.

267, 286 (1986) (O’Connor, J., concurring in part and

concurting in the judgment).

In United States v. Paradise, 480 U.S. 149 (1987), at

least eight’ Justices agreed that remedial affirmative action

was not prohibited by the Constitution. United States v.

Paradise, 480 US., at 167 (“The Government

unquestionably has a compelling interest in remedying past

and present discrimination by a state actor”) (Brennan, J.,

plurality opinion); Jd., at 187 (the remedy “was narrowly

drawn to achieve the goal of remedying the proven and

continuing discrimination”) (Powell, J., concurring opinion),

Id., at 194-195 (“The relief [here] ... must unavoidably

consider race... [Courts] may, and in some cases must,

. ition of Justice White on this particular issue in Paradise is not

an toneaie Paradise, 480 U.S., at 196 (White, J., dissenting),

but in United States v. Fordice, 505 U.S. 717 (1992), he supported

additional remedial measures by Mississippi's college and university

system in light of past discrimination.

resort tO race-conscious remedies to vindicate federal

constitutional guarantees”) (Stevens, J., concurring in the

judgment); Id., at 196 (“the Federal Government has a

compelling interest in remedying past and present

discrimination”) (O’Connor, J., dissenting opinion). As

recently as Adarand Constructors, Inc. v. Pena, 515 U.S. 200

(1995), at least seven of the nine Justices confirmed the

continued vitality of remedial affirmative action. See

Adarand, 515 U.S., at 2113-2114 (O’Connor, J.), at 2120

(Stevens, J., dissenting), at 2133 (Souter, J., dissenting), at

2135-36 (Ginsburg, J., dissenting).

For most of this Court, then, the question turns on

the particulars -- the design and implementation of remedial

affirmative action, and the appropriate standards of review.

ll. THE CIVIL WAR AMENDMENTS WERE

ADOPTED IN PART AS A REMEDY FOR THE

CRIMES OF SLAVERY AND DO NOT

REQUIRE ‘COLOR BLIND’ JURISPRUDENCE

A. THE HISTORICAL CONTEXT OF

REPARATIONS FOR THE CRIMES OF

SLAVERY

Congress embodied a variety of motivations in

passing the Civil War Amendments. See Brown v. Board of

Education, 347 U.S. 483, 489 (1954) (“The most avid

proponents ... undoubtedly intended them to remove all

legal distinctions... Their opponents, just as certainly were

antagonistic to both the letter and the spirit”). Economic

reparations for formerly enslaved Africans were discussed,

but “a strong consensus developed among moderates and

conservatives favoring equal protection of the law for all

men.” § Douglas L. Colbert, Liberating the Thirteenth

Amendment, 30 Harv. C.R.-C.L. L. Rev. 1, 12 (1995).

Some federal attempts were made to provide

economic reparation to formerly enslaved Africans. On

January 16, 1865, General Sherman issued Field Order 15

that provided, among other things, up to forty acres of

“tillable ground” to “respectable negroes, heads of families.”

Commission for Positive Education, The Forty Acres

Documents: What Did the United States Really Promise the

People Freed From Slavery? 52 (1994). However,

consistent with the perspective that Congress preferred

viewing the passage of the Civil War Amendments as

reparations for the previously enslaved Africans and their

descendants, in the Freedmen’s Bureau Acts Congress

provided land for a price to “loyal refugees” and thus the

land was no longer free. 13 Stat. 507, 508-509 (1865). The

Second Freedmen’s Bureau Act revoked General Sherman’s

grant of up to forty acres and required validation of claims in

order to purchase up to twenty acres of land. 14 Stat. 173,

175-176 (1866).

In the 1890s, the Ex-Slave Mutual Relief, Bounty and

& Pension Association was formed. Under the leadership of

Callie House and Rev. Isaiah Dickerson , this organization

rallied the support of approximately 600,000 “ex-slaves” and

their descendants to lobby Congress for the passage of

legislation such as Senate Bill 4718, that called for a

pension for “ex-slaves” and their descendants.‘ This effort

was unsuccessful, as were attempts to obtain material

reparations through litigation in the early 1900s” and in

1995. See Cato v. United States, 70 F.3d 1103 (9™ Cir.

1995).

“ S.B. 4718, 55" Cong. (1898); see also Linda Allen Eustace & Imari A.

Obadele, Eight Women Leaders of the Reparations Movement USA 6-8

2000).

Y Secense & Obadeta, Kighe Women Lendore., 029.

The century followin ivi

i . g the Civil War is

Jim Crow. During Jim Crow, African pong

ae pape poppe continued today by N’COBRA

a te vell as other groups. Adjoa A. Aiyetoro, The

oe a ition of Blacks for Reparations in America: Its

eae on Contribution to the Reparations Movement in

d America Pay?: Slavery and the Raging Debate Ove

Reparations 209-210 (Ray Winbush, ed. 2003).

6 .

Adjoa A. Aiyetoro, The National Coalition

coven (N'COBRA): Its Creation and rit Blacks for Reparations in

ovement, in Should America Pay?: Slavery and the Raging Debate on

B. WHITE SUPREMACY UNDER ‘COLOR

BLIND’ JURISPRUDENCE

For a fleeting moment immediately following the

ivil War, the prospects for formerly enslaved Africans and

cther posans of color eqped bight The Thirteenth

Amendment abolished chattel slavery in all its forms. The

Fourteenth Amendment transformed formerly enslaved

Africans into citizens, and guaranteed due process and equal

ion. The Fifteenth Amendment then extended the

voting franchise to African American men. Large numbers

voted in subsequent elections, and many held elective ae

in state governments and Congress. John Hope Franklin

Alfred A. Moss, Jr., From Slavery To Freedom: A History of

African Americans 238-246 (7" ed. 1994).

i the

The mood of tolerance and reparation for

devastation of slavery did not long endure. Before the

adoption of the Fourteenth Amendment in 1866, several

States created ‘Black Codes’ to perpetuate and enforce white

supremacy, “to keep the colored race in a condition,

practically, of servitude.” Civil Rights Cases, 109 US. 3, =

(1883) (Harlan, J., dissenting opinion). The oo

Amendment was designed “[t]o meet this new peril to

black race, that the purposes of the nation might not be

doubted or defeated.” Civil Rights Cases, 109 US., at 43

(Harlan, J., dissenting opinion). As white supremacy

became more entrenched, African Americans were

disenfranchised economically and politically. See, €.8.,

Hunter v. Underwood, 471 U.S. 222, 229 (1985) (Rehnquist,

J.) (“the Alabama Constitutional Convention of 1901 was

part of a movement that swept the post-Reconstruction South

to disenfranchise blacks...to establish white supremacy”);

Leon F. Litwack, Trouble In Mind: Black Southerners In the

Age of Jim Crow (1998). Nor were the efforts to —

white supremacy limited to the turn of the last century.

Louisiana v. United States, 380 U.S. 145 (1965), Justice

Black described the continuing ingenuity of the State of

Louisiana in denying the voting franchise to African

American citizens. The process began when the Louisiana

Constitution of 1898 implemented a “grandfather clause,’

Louisiana v. United States, 380 U.S., at 147-148, and

continued in an unbroken string of devious innovation into

the 1950’s, when a “legislative committee to preserve white

supremacy” was activated. Jd, at 149. Finally, in 1965, this

Court found Louisiana’s voting practices to violate the

Fifteenth Amendment. Louisiana v. United States, 380 U.S..,

at 153.

White supremacy as an official ideology could not

have survived a robust interpretation of the Civil War

Amendments in favor of African Americans. The Court

eventually agreed with this interpretation nearly a century

later. See Jones v. Mayer Co., 392 U.S. 409 (1968); Loving

v. Virginia, 388 U.S. 1 (1967); United States vy. Mississippi,

380 U.S. 128 (1965); Louisiana v. United States, 380 U.S.

145 (1965); Heart of Atlanta Motel, Inc. v. U.S., 379 US.

241 (1964); Brown v. Board of Education, 347 U.S. 483

(1954). In the intervening nine or ten decades, the Civil War

Amendments suffered retrenchment to the detriment of

African Americans, supporting the myth of white supremacy

and African American inferiority. | White supremacy

flourished under the banners of states’ rights, limitations on

federal power, narrow readings of the Constitutional text,

and ‘color blind’ jurisprudence.

In United States v. Cruikshank, 92 U.S. 542 (1875),

the Court dismissed indictments brought under the

Enforcement Act of 1870, 16 Stat. 140. With gruesome

facts, the defendants had been found guilty in the Circuit

Court for the District of Louisiana of depriving

Constitutional and other rights due to “citizens of the United

States, of African descent and persons of color.” United

States v. Cruikshank, 92 U.S., at 548. In a federalism

discourse on the near-exclusive authority of states to define

and protect the lives of citizens found therein, Chief Justice

Waite shortened the reach of the Fourteenth Amendment, /d.,

at 554-555, and dismissed the indictments. I/d., at 556-57,

559.

In The Civil Rights Cases, 109 U.S. 3 (1883), the

Court found unconstitutional provisions of the Civil Rights

Act of 1875, which prohibited racial discrimination in certain

public accommodations. 18 Stat. 335. The Court found that

these forms of discrimination were not “badges or incidents

of slavery” prohibited under the Thirteenth Amendment and

required a showing of state action before proceeding under

the Fourteenth Amendment. The Civil Rights Cases, 109

U.S., at 24-26. Absent the requisite discriminatory state

action, the statute was ruled unconstitutional in the sense that

the Constitution did not authorize Congress to exercise

power to regulate these forms of discrimination. bid.

Eighty-one years later, Congress revisited the issue with the

Civil Rights Act of 1964, upheld by the Court reading the

identical texts of the Constitution. Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241 (1964) (applying a

commerce clause analysis).

In a group of cases decided in a single Term, the

Court employed its ‘color blind’ jurisprudence while

ignoring the racially disparate effects, examining state laws

which excluded African Americans from juries. Each case

involved appeals of African Americans accused of

murdering whites. Strauder v. West Virginia, 100 U.S. 303

(1878); Virginia v. Rives, 100 U.S. 313 (1879); see also Ex

Parte State of Virginia, 100 U.S. 339 (1878). The Court

allowed facially ‘color blind’ statutes to stand, while striking

down blunter attempts to keep African Americans out of jury

pools. In Strauder v. West Virginia, 100 U.S., at 310, a state

law clearly excluding African Americans from jury pools

was found to have violated the Equal Protection Clause of

the Fourteenth Amendment. However in Virginia v. Rives

100 U:S., at 321-323, a more sophisticated, facially ‘color

blind’ Virginia juror selection system was upheld, even

though it had the effect of excluding all African Americans.

The drafting lesson was not lost on the States, which soon

designed ‘color blind’ statutes with clear discriminatory

intent and effect. Just such a juror qualification law was

upheld in Gibson v. Mississippi, 162 U.S. 565 (1896),

involving a provision under the infamously racist Mississippi

Constitution of 1890. The ‘color blind’ language of Gibson

sounds compelling: “the constitution of the United States, in

its present form, forbids, so far as civil and political rights

are concerned, discrimination by the general government, or

by the states, against any citizen because of his race,” Gibson

v. Mississippi, 162 U.S., at 591 quoted in Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995)

(O’Connor, J.) quoting Bolling v. Sharpe, 347 U.S. 497, 499

(1954). Nevertheless, the petitioner was identified as a

“Negro of the African descent and color black,” Gibson v.

Mississippi, 162 U.S., at 567 and the murder victim was “a

white man.” Id., at 569. In the era of Jim Crow, the

wisdom of a ‘color blind’ approach was lost on the millions

condemned to oppression. See Leon F. Litwack, Been In the

Storm So Long: The Aftermath of Slavery (1979).

Similar ‘color blind’ language can be found in a line

of unfortunate cases praising the Civil War Amendments

while gutting their protections. See The Civil Rights Cases,

109 U.S. 3, 24 (1883) (“The thirteenth amendment has

respect, not to distinctions of race, or class, or color, but to

slavery. The fourteenth amendment extends its protection to

races and classes, and prohibits any state legislation which

has the effect of denying to any race or class, or to any

individual, the equal protection of the laws.”) (finding the

Civil Rights Act of 1875 unsupported by the Civil War

Amendments); Plessy v. Ferguson, 163 U.S. 537, 544 (1896)

(“The object of the [Fourteenth] amendment was

undoubtedly to enforce the absolute equality of the two races

before the law”) (permitting “equal, but separate” public

accommodation on Louisiana railroads); Corrigan v.

Buckley, 271 U.S. 323, 331 (1926) (“all persons and citizens

shall have equal right with white citizens to make contracts

and acquire property”) (dismissing case for want of

jurisdiction, permitting enforcement of racially restrictive

real estate covenants); and Hirabayash v. United States, 320

U.S. 81, 100 (1943) (“Distinctions between citizens solely

because of their ancestry are by their very nature odious to a

free people”) (upholding wartime curfew restrictions upon

persons of Japanese ancestry) in Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, at 214 (1995)

(O’Connor, J.). In Hodges v. United States, 203 U.S. 1, 16-

17 (1906), no Constitutional infirmity was found against a

private conspiracy to forcibly prevent African American

citizens from working, solely on the basis of their race and

color. The ‘color blind’ analysis of the Court stated:

“While the inciting cause of the [Thirteenth]

Amendment was the emancipation of the colored

race, yet it is not an attempt to commit that race to the

care of the nation. It is the denunciation of a

condition, and not a declaration in favor of a

particular people. It reaches every race and every

individual, and if in any respect it commits one race

to the nation, it commits every race and every

individual thereof.” Hodges v. United States, 203

U.S., at 16-17.

—— et ttc a A

These cases are the oration of Brutus, praisin

one he has slain;’ they were the federal pills of Shiv

supremacy for nearly a century, shamelessly professing

color blind equality while turning a blind eye to the harsh

reality of life as an African American during Jim Crow.

C. JUSTICE HARLAN AND THE

CIVIL WAR

Not every Justice uniformly supported a shameless

version of ‘color blind’ jurisprudence. A few lone voices of

dissent may be heard during Jim Crow, most notably the pen

of Justice Harlan. Modern proponents of ‘color blind’

Jurisprudence are fond of quoting Justice Harlan’s dissent in

Plessy v. Ferguson without noting his clear purpose to

protect and uplift African Americans. See, e.g., Berea

College v. Kentucky, 211 U.S. 45, 67 (1908) (Harlan, J.,

dissenting) (the Kentucky statute is “an arbitrary invasion of

the rights of liberty and property guaranteed by the 14”

Amendment against hostile state action”) (majority upholds a

Kentucky statute which forbids Berea College from teaching

white and black students together); Hodges v. U.S., 203 U.S.

1, 37 (1906) (Harlan, J., dissenting) (“The interpretation now

placed on the 13” Amendment is, I think, entirely too

narrow, and is hostile to the freedom established by the

Supreme Law of this land”) (majority denies federal

jurisdiction to allegations of conspiracy to deny blacks the

right to contract and seek employment); Plessy v. Ferguson,

163 U.S. 537, 552 (1896) (Harlan, J., dissenting) (“Our

constitution is color blind ... it is therefore to be regretted ...

” “If then that friend demand wh against i

y Brutus rose Caesar, this i

answer: ~- Not that I loved Caesar less, but that I loved Rome more. Ac

Caesar loved me, I weep for him; as he was fortunate, I rejoice at it; as he

was valiant, I honour him: but, as he was ambitious, I slew him. There

is tears for his love, wy for his fortune; honour for his valour; and death

for his ambition. William Shakespeare, Julius Caesar, Act 3, Scene 2.

for a state to regulate the enjoyment of citizens of their civil

rights solely upon the basis of race ... the judgment this day

rendered will, in time, prove to be quite as pernicious as ...

the Dred Scott Case”) (majority affirms ‘equal, but separate’

common carrier transportation in Louisiana as permissible

under the Thirteenth and Fourteenth Amendments); but see

Gibson v. Mississippi, 162 U.S. 565 (1896) (Harlan, J.).

In his dissent in The Civil Rights Cases, 109 U.S. 3,

at 26, Justice Harlan attempted to focus the Court’s attention

upon the “substance and spirit of the recent amendments of

the constitution,” as well as the Civil Rights Act of 1866,

now codified at 42 U.S.C. § 1981. He insisted that the

Thirteenth Amendment shou'd be read to give Congress the

power “to the extent at least of protecting the race, so

liberated, against discrimination, in respect of legal rights

belonging to freemen, where such discrimination is based

upon race.” Id., at 37. The legacies of slavery did not

disappear upon emancipation, but “such discrimination is a

badge of servitude, the imposition of which congress may

prevent under its power, through appropriate legislation, to

enforce the thirteenth amendment.” Jd., at 43.

The Justices in The Civil Rights Cases would support

Respondents in the cases before this Court today. The Court

struck down the Civil Rights Act of 1875 essentially on

federalism grounds — that such power to remedy private

discrimination had not been granted to Congress and thus

was reserved to the States, but noting with approval that

States themselves could prohibit such discrimination. The

Civil Rights Cases, 109 U.S., at 25. If the State of Michigan

had passed a Michigan Civil Rights Act in 1875, the Court

would have upheld it as a State power not forbidden under

the Thirteenth and Fourteenth Amendments. See Heart of

Atlanta Motel, Inc. v. Uniied States, 379 U.S. 241, 261

(1964) (“[T]he Court in the Civil Rights Cases ... noted with

ES SS ET

—_ tlle ce ta

approval the laws of ‘all of the states’ prohibiting

es This present Supreme Court should do no

lil. STRICT SCRUTINY IS NOT THE PROPER

STANDARD OF REVIEW FOR REME

AFFIRMATIVE ACTION -

A. RACIAL CLASSIFICATIONS ARE

INCIDENTAL TO REMEDIAL

AFFIRMATIVE ACTION

Amici are not unmindful of this Court’s ann

standards of strict scrutiny for racial classifications ~~ oo

such as Adarand Constructors, Inc. v. Pena, 515 US. 200

224 (1995) (“any person, of whatever race, has the right to

demand that any governmental actor subject to the

Constitution justify any racial classification subjecting that

person to unequal treatment under the strictest judicial

scrutiny’ ). As the number of minority groups covered by

racial preferences has multiplied, the wider utilization of race

as a category has attracted strict scrutiny. See, e.g

Richmond v. J.A. Croson Co., 488 U.S. 469, 477-478, 506

(O ‘Connor, J.) (“the gross overinclusiveness of Richmond's

racial preference Strongly impugns the city’s claim of

remedial motivation”’). Although reparations narrowly

tailored to the crimes of slavery and de jure racial

discrimination could meet the strict scrutiny test, a less

stringent Constitutional standard should apply. .

The choice of race as a classification system to

fundamental human rights for Africans was a" ty"

oppressors, not the Africans. The category originated in

white Supremacy in the Colonial period, and was later

imprinted upon the Constitution. Several provisions of the

titution bore racial distinctions, such as the Slave

“ono clause, U.S. Const., Art. I, Sec. 9, the Three-Fifths

clause, U.S. Const. Art. I, Sec. 2, Cl. 3, amended by Amend.

XIV, Sec. 2, and the provisions regarding citizenship which

were interpreted in Dred Scott v. Sandford, 60 US. a

(1856), to deny citizenship to African descendants.

William M. Wiecek, The Sources of Antislavery

Constitutionalism in America, 1760-1848 (1977); Don E.

Fehrenbacher, The Slaveholding Republic (2001). For

approximately a century following Emancipation, de jure

racial discrimination flourished. Government supplied the

racial definitions and enforced compliance.

When remedies are fashioned for these crimes, the

alarm is raised with feigned surprise that all of the

beneficiaries are members of a particular race. How could it

possibly be otherwise? If all of the oppressed people are of a

certain race then it is highly disingenuous to complain of that

very fact when a remedy is designed. Perhaps this

circumstance should not be viewed as a racial classification

at all; it is fundamentally a classification based on common

injury. Reparations for such crimes can be narrowly tailored

to benefit the oppressed and their descendants omg

becoming a racial classification, perhaps even to

satisfaction of Justice Scalia: “individuals who have been

wronged by unlawful racial discrimination should be made

whole; but under our Constitution there can be no such thing

as either a creditor or a debtor race.” Adarand, 515 me

239 (Scalia, J., concurring in part and concurring in ~

judgment). Such reparations do hot require raci

classification at all because the classification is based on

common injury. A few examples will illustrate:

In Korematsu v. United States, 323 U.S. 214 (1944),

the Court upheld the internal relocation and werner of

persons of Japanese ancestry during the Second World War.

—

eS ee me ne -

Decades later, groups of Japanese Americans sued for

damages, United States v. Hohri, 482 U.S. 64 (1987). See

also The Civil Liberties Act of 1988, Pub. L. No. 100-383,

102 Stat. 903 (1988) (authorizing payment of reparations to

Japanese Americans interned during World War II).

While the Civil Liberties Act of 1988 primarily

benefits persons of Japanese ancestry, that fact is incidental.

The racial category was applied by the wartime commanders

and leaders who insisted on exclusion and internment. The

Civil Liberties Act of 1988 does not employ a suspect racial

classification, but merely seeks to remedy, after careful

Congressional study, injustice committed on the basis of

race. See Obadele v. United States, 52 Fed. Cl. 432 (2002).

Likewise, in the last decades, many Holocaust

victims and their descendants have received hundreds of

millions of dollars in reparations for crimes against humanity

during the era of the Nazi regime. See Elazar Barkan, The

Guilt of Nations: Restitution and Negotiating Historical

Injustices 3-156 (2000). Most of the Holocaust reparation

recipients are Jewish, although other distinct ethnic groups

have also received some reparations, such as the Roma. Are

these ethnic, religious or racial categories ‘immediately

suspect,’ Korematsu v. United States, 323 U.S. 214, 216

(1944), or are they merely reflective of the crimes against

humanity, and thus entirely appropriate? Reparations to

survivors and their descendants are entirely appropriate and

do not run afoul of the Equal Protection Clause of the

Fourteenth Amendment.

The history of systemic racism in America is hideous

and corrosive, and the Fourteenth Amendment does not

require race crimes to be ignored. Freed from the albatross

of a “suspect racial classification” analysis, affirmative

action in education designed as reparations for the crimes of

slavery and de jure racial discrimination should be subject to

mere ordinary Constitutional scrutiny, rather than any stricter

formulation.

B. |THE REMEDIAL PURPOSES OF THE

FOURTEENTH AMENDMENT ARE OF

PARAMOUNT IMPORTANCE AND SHOULD

NOT BE SUBJECTED TO STRICT SCRUTINY

This Court first interpreted the Thirteenth, Fourteenth

and Fifteenth Amendments in The Slaughter-House Cases,

83 U.S. 36, 67 (1872), enshrining the Civil War

Amendments in the heroic language of “human rights,” The

Slaughter-House Cases, 83 U.S., at 67-68, and clearly

described the purpose of the Amendments:

“(T]he one ading purpose in them all, lying at the

ceca saa aan without which none of them

would have been even suggested; we mean the

freedom of the slave race, the security and firm

establishment of that freedom, and the protection of

the newly-made freeman and citizen from the

oppressions of those who had formerly exercised

unlimited dominion over him.” /d., at 71.

So certain was the Court of the exclusive focus of the

Civil War Amendments, that Justice Miller mused:

“We doubt very much whether any action of a State

not directed by way of discrimination against the

negroes as a class, or on account of their race, will

ever be held to come within the purview of this

provision. It is so clearly a provision for that race

and that emergency, that a strong case would be

necessary for its application to any other. The

Slaughter-House Cases, 83 U.S., at 81.

This Court has long recognized that any remedial

program under the Civil War Amendments must be balanced

against a desire to transcend the pernicious use of racial

categories. One should not lose sight, however, of the

magnitude of the gap between white and African American

citizens, both in 1865 and today. An important purpose of

the Civil War Amendments was to close that gap in

important respects, and yet much of that goal was frustrated

for a century by the law. See Part TI, ante.

Remedial affirmative action may be utilized without

creating a permanent “racial entitlement” as feared by Justice

Scalia in Adarand Constructors, Inc. v. Pena, 515 U.S. 200,

239 (Scalia, J., concurring in part and concurring in

judgment). As Justice Harlan explained:

“My brethren say that when a man has emerged from

slavery, and by the aid of beneficient legislation has

shaken off the inseparable concomitants of that state,

there must be some stage in the progress of his

elevation when he takes the rank of mere citizen, and

ceases to be the special favorite of the laws, and

when his rights as a citizen, or a man, are to be

protected in the ordinary modes by which other

men’s rights are protected. It is, I submit, scarcely

just to say that the colored race has been the special

favorite of the laws.” The Civil Rights Cases, 109

U.S. at 61. .

Have the laws of Michigan, other States and the

federal laws of the United States, from Emancipation to

today, treated African Americans as “the special favorite of

the law?” Absolutely not. Certainly from Reconstruction to

1964, white supremacists held the upper hand.

Have African Americans “shaken off’ the

consequences of the disaster of enslavement and enjoyed the

same economic and social conditions as white Americans?

Absolutely not. Unlike descendants of immigrant groups

that came to the United States willingly, African Americans

still are disadvantaged in Michigan and throughout the

United States in terms of education, wealth, income, health

and employment, direct manifestations of past and present

systemic racial discrimination. See Respondents’ Briefs on

the Merits.

The emergence of affirmative action in the last

generation ushered a remedial response to these continuing

consequences of chattel slavery, including its progeny, de

jure discrimination. To abandon this remedy when the gap

remains wide is to abandon the mission of the Civil War

Amendments.

IV. REMEDIAL AFFIRMATIVE ACTION IS

CONSISTENT WITH UNITED STATES

TREATY OBLIGATIONS UNDER THE

CONVENTION ON THE ELIMINATION OF ALL

FORMS OF RACIAL DISCRIMINATION

The Convention on the Elimination of All Forms of

discrimination and demands recognition of human rights and

fundamental freedoms on an “equal footing.” Convention on

the Elimination of All Forms of Racial Discrimination,

K.A.V. 2307, 5 LL.M. 352 (1966), 660 U.N.T.S. 195, 216-

218, art. 2,4 1. In this regard, the CERD adopts a rule

roughly congruent with the Equal Protection clause.

The CERD also recognizes an exception for remedial

affirmative action, so long as the remedy does not outlast the

-_——_

660 U.N.T.S. 195, 216-218

- 195, 16, art. 1, 9 4, art. 2,9 2. Under

ote remedial affirmative action is not only permissibl

t may be obligatory. :

At last count, one hundred and fi

ifty-se

may ratified the CERD, including the Unions eae cae

= hn . ratify. The United States Senate ratified the

a on June 24, 1994, 140 Cong. Rec. 14,326 (1994), by

Prey m9 two-thirds majority. U.S. Const. art. II, § 2

nder Article VI of the Constitution, ratified treaties become

—s Federal law, overruling contrary Federal laws. as

el as contrary provisions in State laws or State

Constitutions. U.S. Const. art. VI.

The Senate ratification i

contained

reservations, none of which touched upon Equal etnies

or cog ong sewry Pi Cong. Rec., at 14,326. The

Senate a

me heh» aration that the CERD was not

On December 10, 1998, President Cli

; , t Clinto

ama Order 13107, establishing the policy of the Unie

=e —— ~ fully implement certain human rights

’ uding CERD. Order

ory oes casens Exec. No. 13107, 3

Even in light of the Senate’s declarati

es aration, and givi

minimal effect to Executive Order 13107, the CERD

represents a valid treaty obligation of the United States,

supporting the remedial use of affirmative action as

consistent with both racial non-discrimination and equal

ee Jordan J. Paust, Customary International Law

Human Rights Treaties Are Law of the United States, 20

Mich. J. Int’l L. 301 (1999). While a mere treaty never

overrides the United States Constitution, this Court should

pause thoughtfully before restricting remedial affirmative

action in education on Equal Protection grounds, and

consider the provisions of the solemn treaty ratified by the

vast majority of world’s nations, including the United States

of America. Jordan J. Paust, Race-Based Affirmative Action

and International Law, 18 Mich. J. Int’] L. 659 (1997).

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals in Grutter v. Bollinger, 288 F.3d 732 (6™ Cir. 2002),

and the decision of the district court in Gratz v. Bollinger,

122 F. Supp.2d 811 (E.D. Mich. 2000), should be affirmed.

Respectfully submitted,