Amicus Curiae Brief — Grutter v. Bollinger

|

Nos. 02-241 & 02-516

“

IN THE

Supreme Court of the United States

>< >s>

BARBARA GRUTTER,

Petitioner.

—- Vi -—

LEE BOLLINGER, et al., 7

Respondents.

JENNIFER GRATZ and PATRICK HAMACHER,

Petitioners,

—_—V—

LEE BOLLINGER, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF NOW LEGAL DEFENSE AND EDUCATION FUND,

FEMINIST MAJORITY FOUNDATION, INTERNATIONAL

HUMAN RIGHTS LAW GROUP, AND THE ALLARD K. LOWEN-

STEIN INTERNATIONAL HUMAN RIGHTS CLINIC, YALE LAW

SCHOOL, AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Of Counsel: Jennifer K. Brown

Martha F. Davis Wendy R. Weiser*

Associate Professor of Law NOW LEGAL DEFENSE

NORTHEASTERN UNIVERSITY AND EDUCATION FUND

SCHOOL OF LAW 395 Hudson Street

400 Huntington Avenue New York, New York 10014

Boston, Massachusetts 02115 (212) 925-6635

(617) 373-8921 *Counsel of Record

PIBEST AVAILABLE COPY mes

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................ssessseee0s ill

STATEMENTS OF INTEREST OF AMICI

1. COMPARATIVE AND

INTERNATIONAL LAW ARE

RELEVANT TO THE ISSUES

BEFORE THE COURT ..........cccessceeseeeees 3

II. HIGH COURTS OF OTHER

NATIONS HAVE UPHELD

AFFIRMATIVE ACTION

MEASURES UNDER

COMPARABLE

CIRCUMSTANCES. ....cccccccccccescescsscossees 10

Ill. UNITED STATES TREATY

LAW PERMITS AFFIRMATIVE

ACTION AND, UNDER

CERTAIN CIRCUMSTANCES,

IMPOSES AFFIRMATIVE DUTIES

TO ASSURE EQUALITY .............c0ce00 14

A. The ICCPR Supports

Affirmative Action

Programs Such As The

Admissions Policies At

CONCLUSION

il

CERD Endorses Affirmative

Action Programs ..........-+++++ 17

Self-Execution Is

Not An Issue Where,

As Here, The Treaty

Provisions Are Cited

As Aids To Interpretation ..19

20

ili

TABLE OF AUTHORITIES

FEDERAL CASES

Adarand Constructors, Inc. v. Pena, 515 U.S.

ER 3

Atkins v. Virginia,

a 4,9

D'Oench, Duhme & Co., Inc.

v. FDIC, 315 U.S. 447 (1942).......ccccccceecceees 6

Enmund v. Florida,

ESB U.S. TE2 (1962) ....220.0-cerrevscscecveveveceececeees 5

Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D.

EE 4

Grutter v. Bollinger, 288 F.3d 732 (6th Cir.

EEE 4

Knight v. Florida, 528 U.S. 990 (1999).............. a

Miranda v. Arizona, 384 U.S. 436 (1966)........... 5

urray v. Schooner Charming Betsy, 6 U.S.

(2 Cramch) 64 (1804) ...............ccccecsccesseeeeeeees 4

New York v. Quarles, 467 U.S. 649 (1984)......... 5

New York v. United States, 326 U.S. 572

Ee 5

Nixon v. Shrink Missouri Government PAC,

rT Ms

iV

Omaya v. California,

SB US. Ga Ca cescsnssernsenssnsnssensenesscsess 15

Patterson v. Texas, 123 S. Ct. 24 (2002) ............ 9

Printz v. United States,

521 U.S. 89% ‘1997)......... secsessesenssessesesesoes 6,9

Regents of the University of California v.

Bakke, 438 U.S. 265 (1978) ...........00-++ 11,12

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801)....4

Thompson v. Oklahoma,

GBF ULB. SES CRB ccnsnssscsssscsssscsssssessssesee 5,9

United States v. Then, 56 F.3d 464 (2d Cir.

ee RR SET I 4,5

INTERNATIONAL CASES

Canadian Nat'l Ry. Co. v. Canada, [1987] 1

S.C.R. 1114, 1987 S.C.R. LEXIS 1136

(Can.) sususnesesssenmsnesesssesen sien SAPED

Case C-158/97, Badeck & Others, 2000

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

2000 All ER (EC) 289 (E.C.J. 2000) ......... 10

Case C-409/95, Marschall v. Land Nordhein-

Westfalen, 1997 E.C.R. 1-6363, 1997 All

ER (EC) 865 (E.C.J. 1997). 10

v

Lovelace v. Ontario, {2000} 1 $.C.R. 950,

2000 Can. Sup. Ct. LEXIS 33 (Can.).......... 12

Motala & Another v. Univ. of Natal, 1995 (3)

BCLR 374 (Durban Sup. Ct.), 1995

SACLR LEXIS 256 (S. Aff.) ........cc.cccccee0-e. 13

CONSTITUTIONS, TREATIES, AND TREATY

MATERIALS

Can. Const. (Constitution Act, 1982)

Schedule B, Pt. I (Canadian Charter of

Rights and Freedoms), § 15(2).................-+. 12

Committee on the Elimination of Racial

Discrimination: Addendum by Israel,

U.N. Doc. CERD/C/294

I 13

Convention on the Elimination of All Forms

of Racial Discrimination, opened for

signature Mar. 7, 1966, 660 U.N.T.S.

ee 14, 17, 18

International Covenant on Civil and Political

Rights, opened for

signature Dec. 19, 1966, 999 U.N.T.S.

171 : 14,15

S. Afr. Const. Preamble; ch. 2, § 9(2) ceo. 13

vi

United Nations, Compilation of General

Comments and General

Recommendations Adopted by Human

Rights Treaty Bodies, General Comment

SY), 16, 17

Ute F 8 > yy 14

U.S. Reservations, Understanding,

Declarations, and Proviso, CERD, 140

Cong. Rec. $7634-02 (daily ed. June 24,

DOOD cccecscssscescssssusssnecsscssenssessnsssessetmsesesennese 15

Declarations, and Proviso, ICCPR, 138

Cong, Rec. $4781-01 (daily ed. April 2,

Sell dcsesceusbieiasibidlicadiaialichittisciibineis 1s

United States: Senate Committee On Foreign

Relations Report On The International

Covenant On Civil And Political Rights,

31 LL.M. 645 (May 1992) ......-.-0-c0-00- 16, 17

BOOKS AND ARTICLES

Martha F. Davis, Jnternational Human Rights

and United States Law: Predictions of a

Courtwatcher, 64 Alb. L. Rev. 417

ee 7

Connie de la Vega, Civil Rights During the

1990s: New Treaty Law Could Help

Immensely, 65 U. Cin. L. Rev. 423

(1997) 14, 19

vil

Joan Fitzpatrick, The Preemptive and

Interpretive Force of International

Human Rights Law in State Courts, 90

Proc. Am. Soc. Int’] L. 259 (1996) ............. 19

Ruth Bader Ginsburg & Deborah Jones

Menrnitt, Fifty-First Cardozo Memorial

Lecture—Affirmative Action: An

International Human Rights

Dialogue, 21 Cardozo L. Rev. 253

eel ersecnnenenesemennnenenmmtennemmnndesel 8,11, 13

Louis Henkin et al., Human Rights (1999)....... 19

Oliver Wendell Holmes, Jr., The Common

Mamallites (1998) occscscceceeceeeenennennn..... 13

Claire L’Heureux-Dube, The Importance of

Dialogue: Globalization and the

International Impact of the Rehnquist

Court, 34 Tulsa L.J. 15 (1998) .000.....cccceseeees 7

Marian Nash, U.S. Practice: Contemporary

Practice of the United States Relating to

International Law, 88 Am. J. Int’! L. 719

Sandra Day O’Connor, Broadening Our

Horizons: Why American Lawyers Must

Learn About Foreign Law, 45 Fed.

Lawyer 20 (1998) - 5,7

Viil

Sandra Day O’Connor, Federalism of Free

Nations, reprinted in International Law

Decisions in National Courts

(Thomas M. Franck & Gregory H. Fox

9, RS ee

Sandra Day O’Connor, Keynote Address

Before the Ninety-Sixth Annual Meeting

of the American Society of International

Law, 96 Am. Soc’y Int’! L. Proc. 348

Jordan J. Paust, Jnternational Law

as Law of the United States (1996) ............

Jordan J. Paust, Race-Based Affirmative

Action and International Law,

18 Mich. J. Int’! L. 659 |

Past, Present and Future—A German-

American Symposium (Paul Kirchhof &

Donald P. Kommers eds., 1993) .......--+--++-

OTHER AUTHORITIES

Press Release, New York University,

European Court Members and Four U.S.

Supreme Court Justices to Discuss

Current European and U.S. Constitutional

Issues (Mar. 27, 2000), available at

wo

STATEMENTS OF INTEREST OF AMICI CURIAE'

Amicus curiae NOW Legal Defense and Education

Fund (“NOW Legal Defense”’) is a leading national non-profit

civil rights organization that has used the power of the law to

define and defend women’s rights for thirty years. It has

participated as counsel and as amicus curiae in numerous

cases in support of affirmative action. NOW Legal Defense

is interested in these cases because of the positive impact

affirmative action programs have in promoting equality and

eliminating barriers for women, particularly for women of

color, and for racial minorities.

Amicus curiae the Feminist Majority Foundation

(“FMF”) is a non-profit organization that promotes women’s

economic, social and political equality. FMF is dedicated to

achieving civil rights for all people, including affirmative

action programs for women and people of color. FMF

strongly supports the affirmative action programs challenged

in these cases and the need for diversity in higher education.

Amicus curiae the International Human Rights Law

Group (the “Law Group”) is a non-profit organization of

human nights and legal professionals engaged in human rights

advocacy, litigation, and training around the world. Founded

in the District of Columbia in 1978, the Law Group works to

empower advocates to expand the scope of human rights

protection for men and women and to promote broad

participation in creating more effective human rights

standards and procedures at the national, regional, and

international level. The Law Group has represented

individuals and organizations before U.S. and international

| The parties’ letters consenting to the filing of amicus curiae briefs have

been filed with the Clerk of the Court. Counsel for the amici curiae

authored this brief in its entirety. No person or entity other than amici and

their counsel made a monetary contribution to the preparation of this brief.

oo 2

tribunals and has appeared as amicus curiae in a number of

U.S. cases. The Law Group also maintains consultative status

with the Economic and Social Council of the United Nations.

Beginning in the 1990s, a central focus of the Law Group’s

work has been to promote the use of international human

rights law and standards in efforts to combat racial

discrimination. The Law Group joins this brief to emphasize

the obligation of the United States to provide remedies for

racial discrimination consistent with its obligations under

international treaty law, particularly the International

Covenant on Civil and Political Rights and the International

Convention on the Elimination of All Forms of Racial

Discrimination, as well as international customary law.

Amicus curiae the Allard K. Lowenstein International

Human Rights Clinic (the “Clinic”) is a Yale Law School

program that gives students first-hand experience in human

rights advocacy. The Clinic undertakes numerous litigation

and research projects on behalf of human rights organizations

and individual victims of human rights abuses. Fhe Clinic’s

work is based on the human rights standards contained in

international customary and conventional law, at the core of

which is the prohibition against discrimination. Since the

Clinic began more than ten years ago, its students have

worked on a number of lawsuits and other projects designed

to combat racial, gender, ethnic and other kinds of

discrimination. In recent years, the Clinic has focused

increasing attention on efforts to ensure respect for

international human rights standards in the United States.

SUMMARY OF ARGUMENT

Comparative and international law ~~ y the lower

courts’ decisions upholding the University of Michigan’s

affirmative action programs, and are relevant for at least two

reasons to this Court’s consideration of the constitutionality

of affirmative action programs. First, our legal tradition has

long embraced looking to foreign and international precedent

3

and practice to help solve our legal questions. There is

practical value in examining how other constitutional courts

have analyzed similar issues. Second, in an era of

globalization, this Court maintains its intellectual leadership

in the human rights field by acknowledging the international

context in which its decisions resonate.

The constitutional courts of states as diverse as

Canada, India and South Africa, as well as the European

Union, have all confronted challenges to affirmative action

policies in recent years. These courts have uniformly upheld

such policies, including policies similar to those at issue here,

as consistent with their constitutional guarantees of equal

protection. As members of this Court have previously

recognized, wisdom gleaned from the opinions of colleagues

in foreign jurisdictions—particularly those with legal

traditions and political cultures similar to ours—can assist this

Court in reaching sound conclusions under domestic law.

Furthermore, the United States is party to international

treaties that not only permit race-based affirmative action

programs, but that also may require the implementation of

such programs when failure to do so would perpetuate

wrongful discrimination. These treaties are valuable sources

of interpretive guidance to this Court when considering the

validity of the affirmative action programs at issue here.

ARGUMENT

I. COMPARATIVE AND INTERNATIONAL LAW

ARE RELEVANT TO THE ISSUES BEFORE

THE COURT

It is undisputed that the University of Michigan and its

law school (together, “the University”) use race as one of

many factors in their admissions decisions, and that this use

must be narrowly tailored to serve a compelling governmental

interest. See Adarand Constructors, Inc. v. Pena, 515 U.S.

200, 227 (1995). Here, Respondents argue that the University

4

justifiably uses race as an admissions factor to ensure

diversity in higher education, and Intervenors argue that the

University’s policies are justified as a measure to remedy past

discrimination. See Grutter v. Bollinger, 288 F.3d 732, 735

(6th Cir. 2002); Gratz v. Bollinger, 122 F. Supp. 2d 811, 816

(E.D. Mich. 2000). The record amply supports the force of

these arguments. In addition, amici curiae urge this Court to

follow the trend of American jurists, including members of

this Court, to look to international and foreign law to inform

their decisions regarding domestic legal issues.

From its earliest days, this Court has recognized that

the laws of the United States should be construed to be

consistent with international law whenever possible. See,

e.g., Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)

64, 118 (1804) (“an act of Congress ought never to be

construed to violate the law of nations if any other possible

construction remains”); Talbot v. Seeman, 5 U.S. (1 Cranch)

1, 43 (1801) (“the laws of the United States ought not, if it be

avoidable, so to be construed as to infract the common

principles and usages of nations”); see generally Sandra Day

O’Connor, Federalism of Free Nations, reprinted in

International Law Decisions in National Courts 13, 15-16

(Thomas M. Franck & Gregory H. Fox eds., 1996).

In recent years, the Court has continued to recognize

the importance of looking to international and comparative

law for interpretive guidance in areas of constitutional law.

For example, last year in Atkins v. Virginia, 536 U.S. 340

(2002) (Stevens, J., joined by O’Connor, Kennedy, Souter,

Ginsburg, and Breyer, JJ.), this Court examined the opinions

of “the world community” to support its conclusion that

execution of persons with mental retardation would offend the

standards of decency required by the Eighth Amendment. Jd.

at 347 n.21. Similarly, in Washington v. Glucksberg, 521

U.S. 702 (1997) (Rehnquist, C.J., joined by O’Connor, Scalia,

Kennedy, and Thomas, JJ.), in ruling that the State of

Washington’s statute prohibiting assisted suicide was not

5

invalid on its face under the Due Process Clause of the

Fourteenth Amendment, the Court noted that Canada, Great

Britain, New Zealand, and Australia, like the State of

Washington, have rejected efforts to establish a fundamental

night to assisted suicide, while Colombia has legalized

voluntary euthanasia for terminally ill people. Jd at 718

n.16.

Two broad rationales justify the use of international

and comparative law perspectives to help resolve domestic

legal issues. First, there is a practical value to drawing upon

international law and the experiences of other nations as aids

to interpretation. As Justice Holmes wrote, “the life of the

law has not been logic, it has been experience.” Oliver

Wendell Holmes, Jr., The Common Law 1 (1881). “Other

legal systems,” Justice O’Connor has recognized, “continue

to innovate, to experiment, and to find new solutions to the

new legal problems that arise each day, from which we can

learn and benefit.” Sandra Day O’Connor, Broadening Our

Horizons: Why American Lawyers Must Learn About Foreign

Law, 45 Fed. Lawyer 20 (1998). The possibilities for such

learning are particularly great when those other legal systems

“have struggled with the same basic constitutional questions

as we have: equal protection, due process, the rule of law in

constitutional democracies.” Jd.; see also New York v.

Quarles, 467 U.S. 649, 672-74 (1984) (O’Connor, J.,

* See also Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (looking to

international standards regarding execution of persons under sixteen years

old); Enmund v. Florida, 458 U.S. 782, 796-97 n.22 (1982) (noting

relevance of “the climate of international opinion concerning the

acceptability of a particular punishment” to Eighth Amendment

determination and looking to felony murder laws in England, India,

Canada, and other Commonwealth countries) (citation omitted); Miranda

v. Arizona, 384 U.S. 436, 488-90, 521-22 (1966) (considering law

enforcement “experience in . . . other countries,” including England,

Scotland, and India, in interpreting Fifth Amendment); New York v.

United States, 326 U.S. 572, 584 n.5 (1946) (looking to constitutional

experiences of Canada, Australia, and Brazil relating to intergovernmental

taxation to help decide scope of federal taxation power).

6

concurring) (supporting application of experience of other

countries that addressed similar issues to determine scope of

Fifth Amendment exclusionary rule); United States v. Then,

56 F.3d 464, 468-69 (2d Cir. 1995) (Calabresi, J., concurring)

(noting that German and Italian constitutions “unmistakably

draw their origin and inspiration from American

constitutional theory and practice” and that, as a result, “how

[those countries] have dealt with problems analogous to ours

can be very useful to us when we face difficult constitutional

issues”).

International and foreign law rulings on constitutional

issues facing the Court “cast an empirical light on the

consequences of different solutions to a common legal

problem.” Printz v. United States, 521 U.S. 898, 977 (1997)

(Breyer, J., dissenting). In this regard, the use of international

and comparative law is similar to the use of state law by

federal courts for interpretive guidance when giving content

to federal law. In such circumstances, state law does not

apply of its own force, but instead supplies a useful source of

persuasive authority. See generally D’Oench, Duhme & Co.,

Inc. v. FDIC, 315 U.S. 447, 465-75 (1942) (Jackson, )

concurring) (describing federal courts’ practice of looking to

state common law to interpret federal law). Similarly,

conclusions reached by other countries and by

the international community should at times

constitute persuasive authority in American

courts. . . . While ultimately we must bear

responsibility for interpreting our own laws,

there is much to learn from other distinguished

jurists who have given thought to the same

difficult issues we face here.

Sandra Day O’Connor, Keynote Address Before the Ninety-

Sixth Annual Meeting of the American Society of

International Law, 96 Am. Soc’y Int’l L. Proc. 348, 350

(2002).

7

Second, acknowledging the international context of

this Court’s decisions helps to ensure the continued

intellectual leadership of the United States in human rights

issues and to maintain international respect for our courts in

an era of globalization. See Martha F. Davis, International

Human Rights and United States Law: Predictions of a

Courtwatcher, 64 Alb. L. Rev. 417, 421-28 (2000) (arguing

that in the twenty-first century, judicial legitimacy requires

that courts acknowledge international context of decisions).

Throughout its history, decisions rendered by this Court have

served as a model for countries around the world. As Justice

L’Heureux-Dube of the Supreme Court of Canada has

explained, high courts in other countries have historically

looked to the jurisprudence of this Court for guidance, and the

United States government has been an international leader in

proclaiming the importance of international law and the

promotion of human rights. See Claire L’Heureux-Dube, The

Importance of Dialogue: Globalization and the International

Impact of the Rehnquist Court, 34 Tulsa L.J. 15, 16-17 (1998)

(acknowledging United States’ past judicial influence “{i]n

the fields of human rights and constitutional principles”). As

Justice O’Connor has argued, we fail to “broaden{ ] our

horizons” at our peril:

The vibrancy of our common law legal culture

has stemmed, in large part, from its dynamism,

from its ability to adapt over time. Our

flexibility, our ability to borrow ideas from

other legal systems, is what will enable us to

remain progressive with systems that are able

to cope with a rapidly shrinking world.

O’Connor, Broadening Our Horizons, supra, at 21. Increased

engagement with the constitutional courts of other countries

can help to ensure the continued leadership role of American

courts and the United States more generally.

Both of these rationales for considering international

and comparative perspectives are relevant to the

8

constitutionality of the programs at issue in these cases. The

United States is not alone among nations in using affirmative

action to promote diversity and to remedy the current

practices and lingering effects of discrimination against

particular social groups; nor has the United States been alone

in requiring that such programs be reconciled with formal

guarantees of equality before the law. Moreover, this Court’s

pronouncements on equality traditionally have carried

tremendous weight in international human rights law and the

constitutional law of other countries, and that prestige can

only be enhanced by considering how other nations have

interpreted the equality norms they share with the United

States.

Justice Ginsburg has directly addressed the relevance

of international and comparative law to affirmative action:

[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.

Ruth Bader Ginsburg & Deborah Jones Merritt, Fifty-First

Cardozo Memorial Lecture—Affirmative Action: An

International Human Rights Dialogue, 21 Cardozo L. Rev.

253, 282 (1999).

Indeed, a majority of the Justices of this Court has

supported consideration by United States courts of

international legal materials when expounding federal law.

Chief Justice Rehnquist has called on courts to examine

international precedents, noting, “it is time that the United

States courts begin looking to the decisions of other

constitutional courts to aid in their own deliberative process.”

William Rehnquist, Constitutional Courts—Comparative

Remarks (1989), reprinted in Germany and its Basic Law:

Past, Present and Future—A German-American Symposium

9

411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993).

Similarly, Justice O’Connor, a proponent of an international

perspective, commented in 1998, after an initial meeting with

members of the European Court of Justice, that “{iJn the next

century, we are going to want to draw upon judgments from

other jurisdictions,” including the decisions of the European

Court. Press Release, New York University, European Court

Members and Four U.S. Supreme Court Justices to Discuss

Current European and U.S. Constitutional Issues, at 2 (Mar.

27, 2000), available at www.nyu.edu/publicaffairs/

newsreleases/b EUROP.shtml.

Justices Breyer and Stevens also have demonstrated

interest in both comparative and international law materials as

aids to constitutional interpretation. See, e.g., Atkins, 536

U.S. at 347 n.21 (Stevens, J.); Patterson v. Texas, 123 S. Ct.

24 (2002) (Stevens, J., dissenting from denial of certiorari)

(citing apparent international consensus against the execution

of a capital sentence imposed upon a juvenile to urge Court to

revisit issue of its constitutionality); Nixon v. Shrink Missouri

Gov't PAC, 528 U.S. 377, 403 (2000) (Breyer, J., concurring)

(noting that other nations’ approaches to campaign finance

are consistent with Supreme Court majority’s approach);

Knight v. Florida, 528 U.S. 990, 995-96 (1999) (Breyer, J.,

dissenting from denial of certiorari) (citing Universal

- Declaration of Human Rights and case law of Canada, India,

Great Britain and Zimbabwe to support view that lengthy

delay in administering lawful death penalty may be unusually

and impermissibly cruel); Printz v. United States, 521 U.S.

898, 976-77 (1997) (Breyer, J., dissenting) (discussing

experiences of federal systems in Switzerland, Germany, and

European Union as aids to deciding question of U.S.

federalism); Thompson v. Oklahoma, 487 U.S. 815, 830

(1988) (Stevens, J.) (looking to opinions of “other nations that

share our Anglo-American heritage” and “leading members

of the Western European community” as aids to deciding

Eighth Amendment question).

10

As elaborated below, courts and jurists around the

world have grappled with issues of affirmative action, often in

contexts analogous to those presented by the record in these

cases. Wisdom gleaned from the opinions of colleagues n.

foreign jurisdictions can assist this Court in reaching sound

conclusions under domestic law.

ll. HIGH COURTS OF OTHER NATIONS HAVE

UPHELD AFFIRMATIVE ACTION MEASURES

UNDER COMPARABLE CIRCUMSTANCES

Numerous countries have examined the issue of

affirmative action under their own laws and have upheld

programs benefiting minority populations who suffered

discrimination. Most notably, the Court of Justice of the

European Communities has endorsed affirmative action

programs that use gender as a factor in employment decisions

in order to remedy gender discrimination in employment. In

two recent cases, the Court of Justice upheld national

measures giving priority to women for promotion to public

service positions in which women were underrepresented.

See Case C-158/97, Badeck & Others, 2000 E.C.R. 1-1875,

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

(available on Westlaw); Case C-409/95, Marschall v. Land

Nordhein-Westfalen, 1997 E.C.R. 1-6363, 1997 All ER (EC)

865 (E.C.J. 1997) (available on Westlaw). Critical to the

opinions in both cases was the fact that—as with the

admissions processes at issue here—women were not given

automatic and unconditional priority in obtaining promotions

when there were equally qualified male candidates available;

rather, all of the candidates—male and female—were

assessed individually according to objective criteria. Badeck,

2000 E.C.R. at 1918-19, 1923; Marschall, 1997 E.C.R. at

6393.

In Marschall, a German national rule permitted giving

qualified women priority for promotions to positions where

women were underrepresented, unless there was a specific

1]

reason to favor a male candidate. Marschall, 1997 E.C.R. at

6366. The rule was promulgated to promote equality of

opportunity between men and women and to counteract the

discrimination that had in the past led to a disproportionate

number of higher positions being awarded to male applicants.

Id. The court held that the affirmative action policy was

acceptable. because the candidates were objectively assessed;

indeed, the rule’s “saving clause” specifically allowed the

selection of a male candidate over a female where

nondiscriminatory criteria tilted the balance in his favor. /d.

at 6392-93.

Correspondingly, in Badeck, the Court of Justice was

asked to decide whether the “positive action” program to

promote equality between men and women mandated by the

Hesse Equal Rights Law complied with European

Community law. Badeck, 2000 E.C.R. at 1877, 1878.

Building upon its earlier judgment in Marschall, the court

again concluded it was lawful for women to be given priority

over equally qualified males for promotion in public and

private sector jobs, provided that the employer retained the

flexibility to select the most suitable candidate, with gender as

simply one criterion in the overall evaluation of the

candidates. Jd. at 1891-92. Because the program did not

foreclose selection of a qualified male, the court determined

that the national rule for affirmative action targeting women

for advancement in the areas of public employment, academic

service, and training programs comported with Community

law. Id. at 1923, 1926-27.

Significantly, in both Badeck and Marschall, gender

was used as a plus factor for promotion. Cf Regents of the

Univ. of Calif. v. Bakke, 438 U.S. 265, 318 (1978); see also

Ginsburg & Merritt, supra, at 279 (acknowledging that race

and gender may be plus factors in employment, promotion, or

educational admissions). The discretion accorded by the

German legislation is comparable to that permitted by the

University’s admissions programs where race and ethnicity

12

are included as additional considerations to promote the goal

of diversity. Though the European Court did not explicitly

adopt the concept of “narrow tailoring” from United States

jurisprudence, it engaged in an analysis similar to that

invoked by American courts reviewing government action

under the strict scrutiny standard. Thus, the European Court

investigated whether the priority given to females in

appointments and promotions pursued a legitimate social

objective and used means that were proportionate “in relation

to the real needs of the disadvantaged group.” Badeck, 2000

E.C.R. at 1889. Applying this standard, the court concluded

that a program including such discretion was sufficiently

customized to pass muster under Community law. /d. at

1919. This analysis comports with the rationale of Bakke and

is applicable to the cases at bar.

Other countries also permit affirmative action

programs that correct systemic discrimination using targeted

measures to ameliorate the hardships suffered by certain

minority populations. For example, the Canadian Charter of

Rights and Freedoms states that its equal protection provision

“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.” Can. Const. (Constitution Act, 1982)

Schedule B, Pt. I (Canadian Charter of Rights and Freedoms),

§ 15(2); see generally Lovelace v. Ontario, [2000] 1 S.C.R.

950, 2000 Can. Sup. Ct. LEXIS 33, at *87-*100 (Can.)

(discussing relationship between § 15(2) and Charter’s equal

protection provision). In interpreting the Canadian Human

Rights Act, the Supreme Court of Canada upheld an

affirmative action measure imposed on the Canadian National

Railway to combat systemic discrimination in the hiring and

promotion of women. Canadian Nat'l Ry. Co. v. Canada,

[1987] 1 S.C.R. 1114, 1143-45, 1987 S.C.R. LEXIS 1136, at

*48-*52 (Can.). The special, temporary measure—which

went farther than the programs at issue here or in the

13

European cases—required hiring at least one woman for

every four nontraditional positions unti] women had achieved

greater representation in positions traditionally filled by men.

Id. at 1125-27, 1141, 1987 S.C.R. LEXIS at *17-*21, *44-

*45.

Similarly, the South African Constitution adopted in

1996 specifically acknowledges the injustices of the past and

promotes affirmative action policies to assist groups that have

been disadvantaged under prior laws. S. Afr. Const. pmbl.;

ch. 2, § 9(2). Indeed, the lack of quality education available

to African students in South Africa led the dean of a medical

school to create an affirmative action program targeted to

benefit African students. Motala & Another v. Univ. of Natal,

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

256 at *16-*17 (S. Afr.). An Indian woman who was denied

admission challenged the school’s program. Jd. at *13-*14.

In rejecting her claim, the court observed that, although

Indians also suffered discrimination under apartheid, the

experience for Africans was significantly worse, and

compensating for this long-standing mistreatment of African

applicants to the medical school did not represent unfair

discrimination against Indian students under the constitution.

Id. at *28.

In addition to the countries discussed above, many

other nations also take into account the need to redress the

effects of past discriminatory laws and practices. See

Committee on the Elimination of Racial Discrimination:

Addendum by Israel, at § 48, U.N. Doc. CERD/C/294/Add. 1

(1997) (describing Israel’s program of tutorial and financial

assistance provided to Ethiopian immigrants in higher

education to promote mobility and leadership); Herbert M.

Jauch, Affirmative Action in Namibia 53-148 (1998) (detailing

history of affirmative action in Namibia); Ginsburg & Merritt,

supra, at 273-81 (discussing successful affirmative action

policies in India and European Union). The legal analyses

applied by other countries to uphold successful affirmative

14

action policies for groups that, like racial minorities in the

United States, have suffered past discrimination should

inform United States courts as they address similar issues.

Ill. UNITED STATES TREATY LAW PERMITS

AFFIRMATIVE ACTION AND, UNDER

CERTAIN CIRCUMSTANCES, IMPOSES

AFFIRMATIVE DUTIES TO ASSURE

EQUALITY

The United States’s duty to comply with its

international treaty obligations further supports a finding that

the University’s interest in considering race when selecting its

students is, indeed,’ “compelling,” as the Constitution

mandates. See Connie de la Vega, Civil Rights During the

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

L. Rev. 423, 468 (1997); Jordan J. Paust, Race-Based

Affirmative Action and International Law, 18 Mich. J. Int’! L.

659, 675-76 (1997). Two treaties ratified by the United States

specifically permit race-based distinctions in order to redress

past discrimination and promote the values of diversity: the

International Covenant on Civil and Political Rights, opened

for signature December 19, 1966, art. 2(2), 999 U.N.T.S. 171,

173 (hereinafter “ICCPR”); and the Convention on the

Elimination of All Forms of Racial Discrimination, opened

for signature March 7, 1966, art. 2(2), 660 U.N.T.S. 195, 218

(hereinafter “CERD”). The United States has committed

itself, by becoming a party to the treaties, to take the

affirmative steps necessary to ensure that the equal enjoyment

of rights is guaranteed to all racial groups and their individual

members. Indeed, those treaties are now part of the “supreme

Law of the Land.” U.S. Const. art. VI, cl. 2. What is more,

the Senate’s ratifications of these treaties acknowledged that,

in our federal system, implementation of their principles is a

responsibility of state and local government, as well.?

> The United States Senate ratified the ICCPR with the express

understanding that it “shall be implemented by the Federal Government to

15

Accordingly, the ICCPR and CERD offer relevant, legitimate

guidance to this Court in evaluating whether the University’s

affirmative action programs further compelling interests in

promoting a diverse intellectual community and remedying

past discrimination in admissions. Cf. Omaya v. California,

332 U.S. 633, 649-50 (1948) (Black, J., concurring) (U.S.

pledge in U.N. Charter to “promote . . . universal respect for,

and observance of, human rights and fundamental freedoms

for all without distinction as to race, sex, language, or

religion” is additional reason that California law

impermissibly interferes with federal policy) (citation

omitted); id. at 673 (Murphy, J., concurring) (“Its

inconsistency with the Charter . . . is but one more reason

why the statute should be condemned.”).

A. The ICCPR Supports Affirmative Action

Programs Such As The Admissions Policies At

Issue Here

States Parties to the ICCPR are bound to take

“necessary steps” to effectuate rights guaranteed by the treaty.

ICCPR, art. 2(2), 999 U.N.T.S. at 173. Article 26 of the

ICCPR provides that “[a]ll persons are equal before the law”

and that States Parties “shall . . . guarantee to all persons

equal and effective protection against discrimination on any

ground such as race.” Jd. at 179. Moreover, the Human

Rights Committee created by the treaty has provided

authoritative recognition that “not every differentiation of

treatment will constitute discrimination, if the criteria for such

the extent that it exercises legislative and judicial jurisdiction over the

matters contained therein, and otherwise by the state and local

governments,” and that “the Federal Government shall take measures

appropriate to the Federal system to the end that competent authorities of

the state or local governments may take appropriate measures for the

fulfillment of the Covenant.” U.S. Reservations, Understandings,

Declarations, and Proviso, ICCPR, 138 Cong. Rec. $4781-01 (daily ed.

April 2, 1992); see also U.S. Reservations, Understanding, Declarations,

and Proviso, CERD, 140 Cong. Rec. $7634-02 (daily ed. June 24, 1994).

16

differentiation are reasonable and objective and if the aim is

to achieve a purpose which is legitimate under the Covenant.”

United Nations, Compilation of General Comments and

General Recommendations Adopted by Human Rights Treaty

Bodies, General Comment 18, para. 13, at 28 (1994)

(hereinafter “General Comment 18”). According to the

Committee:

[T]he principle of equality sometimes requires

States parties to take affirmative action in

order to diminish or eliminate conditions

which cause or help to _ perpetuate

discrimination prohibited by the Covenant. .. .

Such action may involve granting for a time . .

. certain preferential treatment in specific

matters ....

Id. para. 10.

The United States affirmed the Human Rights

Committee’s construction when it ratified the ICCPR. The

formal “understanding” adopted at that time states in pertinent

part: |

The United States understands distinctions

based upon race . . ——as those terms are used

in Article 2, paragraph 1 and Article 26—to be

permitted when such distinctions are, at a

minimum, rationally related to a legitimate

governmental objective.

United States: Senate Committee On Foreign Relations

Report On The International Covenant On Civil And Political

Rights, 31 1.L.M. 645, 655 (May 1992) (earlier draft, adopted

later by the Senate and President).

The Report of the Senate Committee on Foreign

Relations, addressing the ICCPR, also noted that the Human

Rights Committee created by the Covenant had interpreted

the treaty to allow certain forms of “differentiation”:

17

In interpreting the relevant Covenant

provisions, the Human Rights Committee has

observed that not all differentiation in

treatment constitutes discrimination, if the

criteria for such differentiation are reasonable

and objective and if the aim is to achieve a

purpose which is legitimate under the

Covenant.

Id.; see also Paust, Race-Based Affirmative Action, supra, at

662-63 n.12.

In sum, the ICCPR has been construed—by the United

Nations Human Rights Committee and the United States

Senate—squarely to permit the purpose here, i.e., affirmative

action. Indeed, the Human Rights Committee has indicated

that affirmative action may be “require[d]” when States

Parties’ failure to take .such affirmative steps would

perpetuate discrimination. General Comment 18, supra, at

para. 10.

B. CERD Endorses Affirmative Action Programs

CERD by its terms also authorizes affirmative action

programs to redress past wrongs. While the treaty’s general

provisions outlaw all forms of racial discrimination, see

CERD, arts. 2-5, 660 U.N.T.S. at 216-22, certain “special

measures” are expressly excluded from the definition of

proscribed racial discrimination. As the Convention states in

Article 1, paragraph 4:

Special measures taken for the sole purpose of

securing adequate advancement of certain

racial or ethnic 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, provided, however, that

18

such measures do not, as a consequence, lead

to the maintenance of separate nghts for

different racial groups and that they shall not

be continued after the objectives for which

they were taken have been achieved.

CERD, art. 1(4), 660 U.N.T.S. at 216.

Again, when it ratified CERD, the United States

expressly recognized that it permits race to be taken into

account when necessary to secure equality. In his formal

statement to Chairman Claiborne Pell of the Senate Foreign

Relations Committee concerning ratification of the treaty,

Conrad Harper, the Legal Adviser to the Secretary of State,

noted: “Article 1(4) explicitly exempts ‘special measures’

taken for the sole purpose of securing adequate advancement

of certain racial or ethnic groups or individuals requiring such

protection.” Marian Nash, U.S. Practice: Contemporary

Practice of the United States Relating to International Law,

88 Am. J. Int’l L. 719, 722 (1994). Significantly, Article 2 of

CERD also imposes on States Parties the duty to take special

and concrete measures of affirmative action “when the

circumstances so warrant.” CERD, art. 2(2), 660 U.N.T-S. at

218; see also Paust, Race-Based Affirmative Action, supra, at

666-67. In ratifying CERD on November 20, 1994, the

United States consented to all of its provisions.

Thus, carefully crafted race-based affirmative action

programs to ensure equal enjoyment of rights by all racial

groups are plainly permissible, and in some circumstances

may be required, under both the ICCPR and CERD.

al Self-Execution Is Not An Issue Where, As Here,

The Treaty Provisions Are Cited As Aids To

Interpretation

The United States’s instruments of ratification for

both the ICCPR and CERD contain declarations that many

(but not all) of the articles are “non-self-executing.” Louis

19

Henkin et al., Human Rights 784-86, 1043-44 (1999). The

propriety of such declarations need not be resolved here,

because the amici do not directly draw upon the treaty

provisions as the foundation for their legal claims. Rather,

the ICCPR and CERD are cited here as additional interpretive

support for concluding that the University’s admissions

policies do not offend the United States Constitution. Such

an informative and illustrative role for international law has

been widely accepted by members of this Court. See Point I,

supra. Even generally non-self-executing treaties can be used

indirectly as aids for interpretation of other laws, defensively

in civil or criminal contexts, or—as here—to support a claim

that the state interest in race-based affirmative action is,

indeed, “compelling.” See, e.g., Jordan J. Paust, Jnternational

Law as Law of the United States 62-64, 68, 97-98, 134-35,

370, 377-78 n.4, 384 (1996); de la Veg>, supra, at 457 n.206,

460, 467-68, 470; Joan Fitzpatrick, ‘he Preemptive and

Interpretive Force of International Human Rights Law in

State Courts, 90 Proc. Am. Soc. Int’] L. 259, 262, 264 (1996);

Paust, Race-Based Affirmative Action, supra, at 671 n.45.

Thus, the Court may appropriately consider these treaties

here.

20

CONCLUSION

For the foregoing reasons, as well as those stated in

the briefs for Respondents, the decisions of the courts below

should be affirmed.

Respectfully submitted,

Of counsel: Jennifer K. Brown

Martha F. Davis Wendy R. Weiser*

Associate Professor of Law NOW Legal Defense

Northeastern University and Education Fund

School of Law 395 Hudson Street

400 Huntington Avenue New York, N.Y. 10014

Boston, Mass. 02115 (212) 925-6635

(617) 373-8921

* Counsel of Record